Professional Documents
Culture Documents
WRITTEN BY:
ADENIYI EMMANUEL T.
SUBMITTED TO:
DATE:3/12/18
PROPERTY MORTGAGE LAWS IN NIGERIA BY MATRIC NO: 1301273 1
A INTRODUCTION
The mortgage of land as security is undoubtedly a nightmare to banks, corporate
organizations, individuals and other financial institutions in contemporary times because of the
multifarious problems posed by the Land Use Act at both the time of creation and the
enforcement of landed security. Since the radical title to land has been vested in the Governor
with the power to revoke a Right of Occupancy for overriding public interest, the security in the
hands of the lender may vanish overnight as a result of the revocation. Property law practice in
Nigeria is broad. Its scope spans meaning of property and property law practice in Nigeria,
various transactions on property, the laws and sources of the laws applicable to property law
practice in Nigeria. At least to lawyers in the legal practice in Nigeria these are the core areas of
Property law practice and it spreads to Administration of estate. Property has several meanings.
However, for the purposes of this write up the meaning will be limited to the right of person to
real and personal property, any estate or interest in any property, real or personal, any debt,
anything in action, and any other or interest. SECTION 2(1) CONVEYANCING ACT, 1881.
Basically, property law practice in Nigeria focus on dealings and laws applicable to such
dealings in tangible or real property: land, anything attached to land, or any interest in land, land
of any tenure, tenements, hereditaments, corporal or incorporeal and houses and other buildings
and individual shares in lands. SECTION 2(ii) CONVEYANCING ACT, 1881 and SECTION
18 INTERPRETATION ACT, LAWS OF FEDERATION, 2004.
It must be noted that property law is different from it practice. The laws are the various
legislations governing the dealings in property. The practice is what is referred to as conveyance
which includes “assignment, donation of power, lease, mortgage, charge, assent, vesting,
declaration, disclaimer, release, demise or settlement and other assurance made by deed” ...
SECTION 2(v) CONVEYANCING ACT 1881 AND SECTION 2(1) PROPERTY AND
CONVEYANCING LAW, 1959
Nigeria just like any other nation in the world has her own history of land acquisition,
developing overtime, leaving behind the on desirable methods and leaving those that are found
ok and compactable with the realities of the modern world. These are some of the methods:
In AJIBOLA V. ISHOLA (2006) ALL FWLR PART 331, P.1209 AT 1230 AND IDUNDUN V.
OKUMAGBA (196) 9-10 SC the court listed the following as way of proving title before a court
of law in Nigeria.
1. By traditional evidence
3. By act of selling, leasing and renting out part of the land or farming on it
CUSTOMARY LAW
This is a set of rules of conduct existing, recognized and obeyed as binding to persons and
things in a particular locality or community at the relevant and material time. These rules and
customs vary from one society to another. i.e. In Igbada Efon Community in Oyo State, it is a
taboo to sell land to a non-native of that community. In Benin kingdom in Edo State, no sells of
land can be effected without the consent of the king. In same Benin, sells of land doesn’t
translate automatic sales of any economic tree on such land. The trees are usually sold
separately.
prove of a customary law. Black and white is a foreign invention, alien to customary law practice
in Nigeria and not acceptable in evidence in prove of customary law OLUBODUN V. LAWAL
(2008) ALL FWLR (PT. 438) P. 1468. Sales under native law and custom in Nigeria is complete
and valid once there is payment of the purchase price; the presence of witnesses; and allowing
the purchaser into possession. ADESANYA V. ADERONMU (2000) FWLR (PT. 15) P. 2492.
CASE LAW
These are decisions of the courts in respect of disputes over real property.
This is the law received from England comprising of the principles of common law, doctrines
of equity and statutes of general application. The statutes of general application are those
enactments of the English parliament that were in existence in England as at January 1, 1900 e.g.
Statute of fraud of fraud 1677, Conveyancing Act of 1881, and the Wills Act of 1837.
Every citizen has the right to acquire and own immovable property anywhere in Nigeria. The
constitution also provides for the enactment of a comprehensive law regulating land dealings:
The Land Use Act. SECTION 43, SECTION 44(1), SECTION 44(2)(c)(d), SECTION 315(5)
LAND USE ACT 1978 – 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 organizations for
residential, agriculture, commercial and other purposes while similar powers will with respect to
non-urban areas are conferred on Local Governments.
No sale of land shall be enforced in the area where this law applies: old western region
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) OF PCL; all conveyances of land or interests in land
for the purposes of creating any legal estate are void unless they are made by deed which shall
either be signed or place his mark on it. Sealing alone is not sufficient SECTION 77(1) AND
78(1) OF PCL; SECTION 97(1) OF PCL;
There is a Stamp Duty Act for every State which provides for the procedure for stamping of
documents within 30 days of the execution of the document.
Any person who shall write any letter or document, at the request on behalf or in the name of
an illiterate person shall also write on such letter or other document his own name as the writer
and his address. SECTION 2 OF THE IPL.
These laws require that the preparation of instruments and documents on sale or transfer of
land can only be done by a Legal Practitioner.
This applies to property law dealings in areas like Surulere, Lagos Island, Yaba, Ebuta-metta,
Mushin, Apapa and Ikoyi in Lagos state
That a company may borrow money for the purpose of its business or objects and many
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
SECTION 166 OF THE ACT.
1. PLEDGE OF LAND: This is where a person referred to generally as the ‘Pledgor’ gives
only possession or deposits any land or interest in land to another party, referred to as the
‘Pledgee” as a security in which the person depositing the property binds himself to do or forbear
from doing a particular thing. The right of the Pledgor to recover possession of the land remains
with him and is never extinguished however how long it might have been in possession of the
Pledgee. AKUCHIE V. NWAMADI (1992) 8 NWLR (PT. 258) P. 214 AT 226.
2. GIFT OF LAND: This in property practice is the voluntary transfer or conveyance of any
interest in land made gratuitously to a recipient and without any consideration paid by the
recipient. Once a gift of land has been made and accepted, the grantor’s right over the land is
destroyed and he cannot lay claim to it thereafter.
3. SALE OF LAND: This is an agreement whereby the vendor sells and the purchaser buys
the land for a consideration paid by the purchaser.
F. CONCLUSION.
Property law practice in Nigeria is broader than what has just been discussed in this write
up. This write up is a quick point of reference to all the major aspect of property law practice in
Nigeria. It is a good pointer for a primary study of property law practice. Legal practitioners in
Nigeria take special interest in property law practice because of its relevance to the society and
the ultimate financial benefit derivable from property dealing in Nigeria and across the globe.
Meanwhile as attractive as property law practice is, it is capital intensive from the
consultation of a good lawyer, legal documents and investment in property as a whole. While
government is making it easy to carry on property law practice in Nigeria i.e. registration and
search. It has not been able to bring down the high cost of property and property dealings.
Although there is yet to be a legal pronouncement on the statutes of legal documents and
property transactions effected by fake lawyers that have been discovered and prosecuted in
Nigeria. But my humble opinion is that such transactions will be a nullity meanwhile ignorance
has never been a good defense in law.