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LADOKE AKINTOLA UNIVERSITY OF TECHNOLOGY,

P.M.B 4000 OGBOMOSO, OYO STATE.

SUMMARY OF ALL RELATING LAWS IN PROPERTY MORTGAGE IN NIGERIA

WRITTEN BY:

ADENIYI EMMANUEL T.

MATRIC NO: 130273

COURSE: URP 413

TITLE: URBAN LAW

SUBMITTED TO:

THE DEPARTMENT OF URBAN REGIOAL PLANNING LAUTECH OGBOMOSO.

L.IC: DR, MRS ADIGUN

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

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B. METHODS OF ACQUIRING LAND IN NIGERIA

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:

1. FIRST SETTLEMENT: this method of acquiring land in Nigeria is by deforestation of


land by the first settlers on such land. They obtain the right of ownership over a land by
being the first person(s) to settle on it. Most family land in Nigeria cities today was
obtained through these means. This was obtainable during the early 90’s and hardly
obtainable presently.
2. CONQUEST: The conqueror of a tribe in tribal wars takes over the land of the conquered
tribe. This is no longer obtainable in Nigeria. It has long ceased.
3. CUSTOMARY GRANTS: This is a process by which community heads gives land to a
person usually a member of that community as compensation to a person for his
contributions to the development of such community. This is still obtainable in Nigeria in
towns and villages.
4. GIFTS OF LAND: This is a voluntary transfer of land made gratuitously to a recipient
without any consideration paid by him. This is done in Nigeria as a means of attracting
investors into a community, though some community(s) do prefer giving lands to their
sons and daughters to use for investment while they are reluctant to give out land as gift
to non-natives or foreigners.
5. SALE OF LAND: This is a complete transfer of interest in land by a seller to a purchaser
for a given price. This is the most common and popular means of acquiring ownership in
Nigeria. In fact, sales of land have become a commercial venture and means of
livelihood, income and employment generation in the Nigerian society. However, some
remote communities in Nigeria will never sell their lands to non-natives of their
community. In fact, it is a taboo. To them, land and everything on and upon it should
only be transferred from one generation to the other within same community and nothing
more.
6. INHERITANCE OF LAND: This is a transfer by devolution from one person to another
through the instrument of wills and assent.

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C. WAYS OF PROVING TITLE TO LAND BEFORE A COURT OF LAW IN
NIGERIA

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

2. By production of duly authenticated documents of title

3. By act of selling, leasing and renting out part of the land or farming on it

4. By act of long possession and enjoyment of the land

5. 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. 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.

D. APPLICABLE LAWS TO PROPERTY LAW PRACTICE IN NIGERIA

 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.

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Custom is usually a question of fact which is required to be pleaded and proved by witnesses
in any legal proceeding and documents i.e a written letter cannot be admitted in evidence in

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.

 RECEIVED ENGLISH LAW

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.

 THE 1999 CONSTITUTION

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)

 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

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.

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 SECTION 1 provides that the Governor of each state shall hold the land comprised in
such State upon Trust and administer same for the use and common benefit of all
Nigerians. The greatest and highest legal interest a private holder can have on the
land is a right of occupancy SECTION 5(1).
 SECTION 49 precludes the courts from questioning the Governor’s power to grant
right of occupancy.
 SECTION 26 renders void any alienation of interest in land without consent. But of
recent there have been an agitation for the urgent review of the Land Use Act, the Act
is argued to be as ancient as the lands it seeks to regulate and crude as the tools used
in tilling those lands and week as the hands that tilled the said lands. It is proposed
that it should be reviewed to meet the exigencies of modern realities.
 PROPERTY AND CONVEYANCING LAW (PCL) 1959

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;

 STAMP DUTIES ACT/LAW 2004

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.

 ILLITERATE PROTECTION LAWS (IPL) 1994

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.

 LAND INSTRUMENT REGISTRATION LAWS (LAGOS)

These laws require that the preparation of instruments and documents on sale or transfer of
land can only be done by a Legal Practitioner.

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 REGISTRATION OF TITLES LAW 2004

This applies to property law dealings in areas like Surulere, Lagos Island, Yaba, Ebuta-metta,
Mushin, Apapa and Ikoyi in Lagos state

 COMPANIES AND ALLIED MATTERS ACT (CAMA)

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.

E. PROPERTY TRANSACTIONS IN NIGERIA

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.

4. LEASES OR LEASEHOLD: This is a written agreement which allows a property owner


(landlord) to allow another (tenant) to use the property for a specified period of time.

5. LICENSE: Permission to engage in a certain activity, granted by the appropriate authority.

6. MORTGAGE AND CHARGE OF LAND: This is generally the conveyance of a legal or


equitable interest in a property with a provision for redemption, that is, the conveyance shall

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become void or the interest shall be re-conveyed upon the repayment of the loan – PER
AMAIZU JCA, IN B.O.N LTD V. AKINTOYE (1999) 12 NWLR (PT. 392) P. 403.

7. DONATION OF POWER: This is an agency relationship by which a person gives power to


another to act on his behalf doing all that the person donating the power may lawfully do on his
behalf.

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.

However, it won’t be a misdirection if I take my time to correct some misplaced priority


on the part of party(s) to most property law transactions in Nigeria. Property law practice to the
‘’unlearned’’ involves to a landlord or landlady just collecting of his Rents when due and writing
of quit notice on default by the tenant. To the tenant it is nothing more than just paying the house
rent and thereafter calling on the landlord to effect some repairs whenever there is one. Both the
landlord and the tenant obviously out of ignorant usually fail to identify and enforce their rights
as implied from their relationship and expressed in the form of covenants in the tenancy
agreement. While to the mortgagee it is about having a property as a security for a loan from the
bank. Although, the banks are usually too smart and understands the terms of the mortgage
agreement. They have and pay team of lawyers to conduct all the legal activities without feeling
the financial burden.

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On the other hand, the mortgagee for lack of proper legal advice or greed usually contacts
lawyers who have inadequate understanding of the principles of Mortgage practice thereby
putting the Mortgagee at a very bitter state. These sad situations pointed out above bears it head
also with the Donor, the Donee and the third party under a power of attorney, The purchaser and
the seller in Alienation of Interest in Property/Sales of property, leasee and leasor in Leasehold
etc. No doubt that to avoid these bitter situations pointed out above, party(s) in any property
transaction must avoid greed and consult very competent lawyers for legal consultations before
the transaction and legal service during and after the transaction. Also, in consulting lawyers in
Nigeria, party(s) to property transactions should Endeavour to consult only legal practitioners
who have been duly called to the bar as barrister and solicitor of Supreme Court of Nigeria and
have the competence to carry through with a reasonable correctness all the legal steps involved
in such property transaction. There are many lawyers’’ big and small’’ as the unlearned will
always prefer to classify Nigerian lawyers using the material possessions within such lawyer’s
disposal i.e size of the cars they ride in or office they use not taking efforts to know if they have
been called to the bar and have the competence to effect such transactions without causing future
pains, waste of time and money that will eventually result to calling a Competent lawyer to fight
the legal battle in court.

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.

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