PROPERTY LAW

DEED

A deed is a document in writing which furnishes evidence or gives information about

some facts agreed upon between persons and which is signed, sealed and delivered.

Black’s Law Dictionary defined a deed as “at common law, a sealed document, containing
a contract or covenant, delivered by the party to be bound thereby, and accepted by the
party to whom the contract or covenant runs.”

Thus, a deed is said to be a document which passes interest in property or which binds a
person to perform or abstain from doing some action. It furnishes evidence or
information about something – Section 77(1) of PCL.A duly executed deed of
conveyance is sufficient evidence to support an award of title to a land to the beneficiary
in the deed of conveyance.

Deeds are of two types namely: indentures and deed polls. Indentures binds two or
more persons e.g. the deed of legal mortgage between the Mortgagor and Mortgagee.
While deed poll is granted by one person only e.g. power of attorney under seal to
convey interest in a property.

A deed in modern times is usually in writing on a good paper which is signed, sealed and
delivered. It can also be used to:

a) Effect the conveyance of an interest, right or property in a real estate;

b) Create an obligation binding on a person; and
c) Confirm some act whereby an interest or property has already passed e.g. a
confirmatory deed.

FEATURES OF A DEED

 Durable paper: These are papers like A4 paper, Indenture paper, and
parchment.
 Signature of parties: It must be signed by the parties because an unsigned
deed is inadmissible against the party who has not signed it – Faro Co. Ltd v.
Osuji; Section 91(4) Evidence Act. Signature has a wide meaning and
whatever mark, symbol or device used to represent himself is sufficient.
However, statute has made signature important in documents. Section 97(1)
PCL provides that where an individual executes a deed, he shall either sign or
place his mark upon it and sealing alone shall not be deemed sufficient. The
result of not executing a deed makes it inadmissible in evidence – section 91(4)
of Evidence Act which provides that a statement in a document shall not be
deemed to have been made unless the document was written, made, produced or
signed or initialed by the person making the statement.Where any of the parties
is an illiterate, there should be an illiterate jurat – section 3 of Illiterate
Protection Act; Ezeigwe v. Awudu. In, Itauma v. Akpe-Ime (2000) 12
NWLR (Pt. 680) 156, the Supreme 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.

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  Sealing: This was an ancient requirement of deeds. A seal is usually a red wafer
fixed to the placed marked LS (locus sigili) in a deed. It is no longer mandatory
that the instrument or document must have a sealbut where a party to a deed is
a company, the company is required to affix its seal to the deed – Section 98(1)
of PCL. While sealing is strongly advised on deeds, it appears that where no seal
is impressed on a document, it will not be vitiated on that account only. Section
159 of the Evidence Act 2011 provides that when any document purporting to
be and stamped as a deed, appears or is proved to be or to have signed and duly
attested, it will be presumed to have been sealed and delivered, although no
impression of a seal appears on it. Under Section 80(1) of Registration of
Titles Law, it provides that an instrument which is expressed to be made or to
operate as a deed shall be deemed to be a deed and shall operate accordingly,
but shall not on that account be required to be sealed.In First National
securities v. Jones (1978) 2 WLR 475, a mortgage deed was signed by the
mortgagor. The signature was made across a printed circle at the end of the deed
and in that circle were printed the letters “LS”. The mortgage was held to be
validly executed. Also, in Carlen (Nig.) Ltd. v. University of Jos (1994) 1
SCNJ 72, the Supreme Court held that the failure of the University of Jos to affix
its seal to the contract between it and the Appellant did not make the contract
void in law.
 Delivery: This is an act conveying intention to transfer title, and be bound by the
transaction. A deed does not necessarily take effect from the date inserted on it,
but from the date of delivery. Delivery is signified by the passing of an interest or
right and not necessarily by the parting with physical possession of the deed. It is
an act done to indicate an intention to be bound – Jegede v. Citicon Nig. Ltd
(2001) 4 NWLR (Pt. 702) 112 at 139. To constitute delivery, the deed must
be placed in the hands of the grantee (receiver) or within his control, with the
intention that it is to become operative as a conveyance. Mere physical delivery of
a deed without an intention to convey interest is not delivery – Awojugbade
Light Industries v. Chinuke (1995) 4 NWLR (Pt. 390) 379. Delivery may be
absolute or conditional. Absolute is one which is complete upon the actual
transfer of the instrument from the possession of the grantor. While conditional
(also known 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 upon the condition that it is not operative until
some condition is performed. See Brossette Manufacturing Nig v Ola
Illemobola Ltd & ors (2007) All FWLR (pt 379) 1340.
 Attestation: This is a third party confirming the execution of the instrument by
the parties. It is an act of witnessing an instrument in writing, that one or more
persons were present when the deed was executed. The witness must attest as
witness, a party cannot. Generally, there is no legal requirement for attesting a
deed and attestation is not a requirement for the validity of a deed. Attestation is
only important to prove due execution and to prevent fraud. Attesting a deed
before certain designated officials (Magistrates, Justice of the Peace, etc) is
mandatory for documents executed by illiterate or blind persons. However, deeds
executed by a company are required to be attested by the Secretary or the
Director of the company – section 131 of Evidence Act; section 98 of
PCL.Attesting a deed is strongly advised because it facilitates the proof of
execution of the deed where it becomes necessary.

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  Consent of the Governor:This is where it relates to transfer of interest in land
and in the urban area, the deed should be with the consent of the Governor which
ought to be endorsed in the deed – Savannah Bank Nig. Ltd v. Ajilo (1989) 1
NWLR (Pt. 97) 305

WHEN A DEED IS REQUIRED IN A TRANSACTION AFFECTING LAND

Generally, all transfers of land or of any interest in land are void for purposes of
transferring or creating a legal interest unless made by deed – Section 77(1) PCL.

Deeds are required in the following transactions:

1) Transactions lacking in consideration e.g. deed of gift.

2) Conveyance of interest in land, except where personal representatives of a
testator by an assent vest title in land to a beneficiary e.g. Deed of Lease, Deed
of Mortgage. By section 77(1) PCL, conveyances of legal interest in land are
void except where they are made by deed.
3) Where an attorney is appointed to execute a deed, the power appointing him
must be by deed – Chime v. Chime (2001) 3 NWLR (Pt. 701) 527. In Powell
v. London & Provincial bank (1893) 2 Ch. 555, a company law provides that
to transfer a share, a deed of transfer was required. A holder of shares executed
a blank deed in favour of the Bank which then inserted its name in the blank
space. The court held that the transaction to be invalid since the Bank itself was
not appointed by deed.
4) Vesting declaration: to confer or bestow on someone the legal right to power,
property, etc made in place of an oath.
5) Voluntary surrender: to give up a deed by free will.
6) A lease for a term exceeding three years. Such a lease is required to be under
seal. Those not exceeding three years could be created orally, or simply in
writing.
7) Where a deed is required to be rectified.
8) Creation or discharge of alegal mortgage must be by deed

WHERE A DEED IS NOT MANDATORY

Section 77(2) of PCL provides for most instances when property transactions are not
required to be by deed. These are:

1) Assents also described as vesting assent is the instrument by which personal

representative of a deceased person conveys land to the beneficiary who is
entitled to the property upon the grant of a probate to the personal
representatives.
2) Surrenders by operation of law takes effect by implication, for example, where a
lessee accepts a new lease that is incompatible with an existing lease. Implied
surrenders need not be in writing to take effect.
3) A lease or tenancy for a term less than three years – Okoye v. Nwulu (2001)
11 NWLR (Pt. 724) 362 at 367.In Re Knight (1882) 21 Ch. D. P. 442 at
458, it was held that a lease for a period less than three years with a right to
maintain 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. – Hand v. Hall (1877)
2 Ex. D 355.

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 4) Receipts not required by law to be under seal e.g. a receipt endorsed on a
mortgage serves as sufficient discharge of the mortgage.
5) Vesting orders made by a court to create or transfer a legal estate in land to a
person e.g. where an equitable mortgagee exercises his power of sale, the court
may make an order vesting the land in the purchaser. Such order is not required
to be under seal.
6) Conveyances taking effect by operation of law. Under this, transaction need not
be under seal; and properties vested in personal representatives or trustees does
not belong to them but is held by them in trust for the beneficiary.
7) Disclaimers who refuses or renounces anything.
8) Transactions covered by the rule in Walsh v. Lonsdale (1882) 21 Ch. D 9. The
rule is that an instrument which is void as a conveyance because it is not a deed
may still operate in equity as an agreement for conveyance. In Opara v. Dowel
Sclumberger (Nig.) Ltd. (2006) All FWLR (Pt. 36) 240 at 253 where the
principles of Walsh v. Lonsdale were affirmed, the Supreme Court held that an
agreement for a lease is as good as a legal lease though the agreement confers
only an equitable interest in the property.

VARIOUS PARTS AND CONTENTS OF A DEED

 Commencement: (THIS LEASE, or THIS MORTGAGE, or THIS DEED, etc). The

use of any of those is essential because every deed should on the face of it show
that it is intended to be a deed.
 Date: (Made this ………….. day of ………….. 20….). However, a deed takes effect
from its date of delivery, not the date on the deed. This position of the law is
contained in Section 157 of the Evidence Act to the effect that a deed is
presumed to have been made on the date of delivery. In practice, a deed is left
undated until one is ready to stamp the deed.
 Parties: (ASSIGNOR / ASSIGNEE, MORTGAGOR / MORTGAGEE, LESSOR /
LESSEE, VENDOR / PURCHASER). The word describing the parties depends on the
nature of the transaction. The names and address of all the parties must be
included to identify them because a stranger cannot sue on the terms of a deed,
only parties to a deed or persons deriving benefit under it can sue to enforce the
terms of the deed – Adebanjo v. Olowosoga (1988) 2 NSCC 203; Nnubia v.
A. G (Rivers State) (1999) 3 NWLR (Pt. 593) 82
 Recital: These are statements of the material facts that constitute the
background to the transaction. If these facts are not correctly recited, there will
be a problem in understanding the transaction. In Nitel v. Rockonoh
Properties Limited (1995) 2 NWLR (Pt. 378) 473 at 507, it was held that a
recital is a formal part of a deed or writing which explains the reasons for the
transaction.The use of ‘WHEREAS’ to introduce the recital is archaic, the preferred
word is ‘BACKGROUND’. There are two types of recital namely narrative (history
and background of how the vendor came to own the property)and introductory
(explains the reason for the present conveyance in the deed). Under Section 162
of the Evidence Act 2011, there is a presumption that recitals of more than
twenty years old is sufficient evidence of the truth of the facts stated in them,
recitals could therefore create estoppels in respect of the statements in a deed.
 Testatum:(NOW THIS DEED WITNESSES AS FOLLOWS). This part contains the
active (controlling) parts of the deed. This is where the rights and obligations of
the parties are clearly set out. It usually commences the operative part.

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  Consideration: (IN CONSIDERATION OF THE SUM OF N………………… PAID BY THE
PURCHASER TO THE VENDOR, THE RECEIPT OF WHICH THE VENDOR
ACKNOWLEDGES). The consideration clause states the amount the property is
being sold/assigned/demised to a purchaser. It is on the disclosed amount that
stamp duties would be paid.
 Receipt clause: This discloses the fact that the vendor has collected the money
for the property. The implications of inserting the receipt clause are –
a) Prima facie, it is evident of payment of the money – s. 55 of CA; s. 93 of
PCL.
b) There is no need for a further receipt, since it is adequate discharge to the
person paying the money (purchaser) – section 54 of CA; section 92 of
PCL.
c) It is adequate authority for the purchaser to pay money to the Solicitor
who produces the deed of conveyance as acting for the vendor – section
56 of the Conveyancing Act (CA); Section 94 of PCL.
 Words of Grant: No special words are needed to transfer the property.
Examples of words that may be used are “Assigns, or Transfers, or Conveys”.
 Habendum: This part 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 – Stephen Idugboe v. Anenih (2003) FWLR (Pt. 149) 1418.
 Covenant for Indemnity: This is an undertaking by the assignee/grantee to pay
the rent and observe the covenants and conditions stated in the lease e.g. a
Certificate of Occupancy. The covenant serves as security for reimbursement of
the vendor in the event of a breach by the assignee of the conditions in the lease.
 Acknowledgement for Custody and Production of Documents:The vendor
undertakes with the purchaser for the safe custody of the documents listed in the
schedule and acknowledges his right to the production of the documents for
inspection, citing, etc.
 Schedule: These are the survey plan, table diagram, and the inventory of items
that are transferred under the deed. The use of schedules is to avoid distractions
to the flow of the sequence of the deed. The deed may provide for more than one
schedule depending on the need.
 Execution:This means signing, and the mode of execution of a document
determines whether or not it is a deed. The capacity of the parties (individuals,
illiterates, blinds, companies, attorneys, etc) is important in the mode of
execution.
 Franking: This is the endorsement of the name and address of the lawyer who
prepared the deed on it. Rule 10 of Rules of Professional Conduct (RPC)
provides that a lawyer acting in his capacity as a legal practitioner… shall not sign
or file a legal document unless there is affixed on any such document a seal and a
stamp approved by the NBA.

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