PROPERTY LAW PRACTICE 2016/2017 GENERAL OVERVIEW AND APPLICABLE LAWS-WEEK 3

SALIENT POINTS FROM PROPERTY LAW PRACTICE 2016/2017

NIGERIA LAW SCHOOL LAGOS CAMPUS

(GOD IS THE KEY TO SUCCESS)

WEEK 3: GENERAL OVERVIEW AND APPLICABLE LAWS

This lecture bothers on the various applicable laws that govern property transaction in Nigeria.

According to Mr Slyvester Udeamezue he told us that in answering Property Law question for the purpose of Bar Part II you should consider the following factors;

·         Ask yourself where the Property is located  (exception to this rule is when the question bothers on Power of Attorney and Creation of Will, where you consider the law where the man resides)

·         Nature of Transactions

·         Status of the Party

·         Applicable Laws.

POSER: Identify the various property Law Practice jurisdictions in Nigeria, and the specific States/areas covered by each jurisdiction.(Question From Task)

1.      Property and Conveyancy Law 1959

Applicable: Former Western and Mid-Western State; OYO, OGUN, OSUN, ONDO, EDO , DELTA AND EKITI

2.      CONVEYANCY ACT 1881

Applicable: Northern State and Eastern state including Abuja

3.      Lagos state Land Registration Law govering the whle of Lagos state. In lagos we have Mortgage and Property Law of Lagos

For the purpose of Bar Part II we have applicable laws that govern property transactions in Nigeria, they are refferd to as the general laws;

·         Constitution

·         Land Use Act

·         Customary Laws

·         Received English laws

·         Case laws

·         Legal practitioners act

·         Rules of Proffessional Conduct

·         CAMA

·         Stamp duties act

·         Captital Gains Act

·         Illetrate protection Act

·         Marriage Act etc….

THE VARIOUS PROPERTY TRANSACTIONS IN NIGERIA WITH PARTIES AND DOCUMENT

1.      ASSIGNMENT- transfer of the entire unexpired residue

PARTIES: Assignee and Assignor

Document: Deed of Assignment

2.      LEASE- transfer of some of the unexpired residue. In lease reversionary right exist as it is a term granted from the right of occupancy. It can be either above 3yrears or 3years and below.

PARTIES (ABOVE 3YEARS): LEASEE AND LEASOR

DOCUMENT: Deed of Lease

PARTIES(3 YEARS OR BELOW): LANDLORD AND TENANT

DOCUMENT: Tenancy Agreement

FOR THE PURPOSE OF BAR FINAL NOTE THAT WHEN THE PROPERTY IS REGISTERED WITH C OF O(CDERTIFICATE OF OCCUPANCY) THE TRANSACTION WILL BE SUB-LEASE AND THE GOVERNOR WILL BE THE HEAD-LEASOR AND THE DOCUMENT WILL BE DEED OF SUB-LEASE.

3.      MORTGAGE - legal and equitable mortgage

PARTIES: Mortgagee and Mortgagor

DOCUMENT: Deed of Legal Mortgage

4.      GIFT OF LAND- no consideration; thus it must be by deed. It is a voluntary and gratiutious transfer or conveyance of an interest in land to another person called a donee, without the done paying any consideration for it.  A gift is always made INTER VIVOS and it lacks the element of bargain. The following conditions must exist for there to be a valid gift of land:

•           Intention of the donor to make the gift

•           Completed act of delivery to the donee

•           Acceptance of the gift by the donee.

See ACHODO v. AKAGHA

5.      SALE OF LAND

PARTIES (FIRST STAGE): Vendor and Purchaser

DOCUMENT: Contract of Sale

PARTIES: (COMPLETION STGAE): Assignor and Assignee

Document: Deed of Assignment

6. ASSENT: issued by the personal representative to the beneficiary before the property can be vested in the beneficiary. A will must be in existence before an assent can be issued.

7. A WILL AND CODICIL: there is a difference between a will and a codicil in spite of the fact that they are both testamentary documents. For there to be a codicil, there must have been a will in existence. A codicil amends, revoke and add to the provision of a will. Also it revives and republishes a will. In respect of a will, probate will be granted, and in respect of an intestate estate, letters of administration will be granted. In respect of a testate estate where there is no executor, letter of administration can be granted.

PARTIES: Testator and Executors

8. DONATION OF POWER: more of an agent/principal relationship but it is sui generis. An agent is usually appointed when a principal does not want to be involved in the transaction.

PARTIES: Donor and Donee

DOCUMENT: Power of Attorney.

POSER: Who prepares the documents?

Answer: Usually the solicitor of the party who will lose or suffer should something goes wrong that will prepare the document.

·         Deed of Assignment - Assignee's solicitor

·         Power of Attorney - Donor's solicitor

·         Deed of Legal Mortgage - Mortgagee's solicitor

·         Deed of Lease - Lessor's solicitor

·         Will/ Codicil - Testator's solicitor

·         Assent - Personal representatives

·         Letters of Administration

·         Contract of Sale - Vendor's solicitor.

·         Letter - Solicitors

·         Search Report - Solicitor (Purchaser or Mortgagee's solicitor.

POSER: With the aid of statutory and judicial authorities, list out any eight (8) ethical or professional responsibilities Prof Owena Briggs (SAN) owes Chief Chamberlain in the course of acting as Chief Chamberlain`s lawyer in the various transactions undertaken or contemplated in the above scenario.                     

Answers

1.DUTY NOT TO CHARGE ARBITRARILY- According to Rule 52(1) Rules of professional Conduct 2007 the professional fee charged by a lawyer for his services shall be reasonable and commensurate with the services rendered. Accordingly, Prof. Briggs shall not charge excessive fees for the transactions he is undertaking on behalf of Mr. Chamberlain.

2. DUTY NOT TO USE OUTDATED LAWS- It is the responsibility of the lawyer while drafting legal documents on behalf of his client or while advising his clients not to use outdated laws or arbitrary laws. Rather he should use the laws that are up to date and applicable to the given situation- NBA V. AKINTOKUN, RULE 15(1) Rules of Professional Conduct 2007.

3. DUTY TO EXERCISE COMPETENCE: it is the responsibility of a lawyer to represent his client competently and not neglect any matter entrusted to him by his client. He should also ensure that he prepares adequately before representing his client.  Rule 16(1) the Rules of Professional conduct 2007. 

4. DUTY OF CARE AND SKILL- it is the duty of a lawyer to devote his attention, energy and expertise to the service of his client and to represent his client in a manner consistent with his best interest-Rule 14(1) Rules of Professional conduct 2007 and not in a negligent manner- Rule 14(5) Rules of Professional Conduct. The lawyer should also keep his client informed on the progress level or any new development relating to his assignment -Rule 14(2) Rules of Professional Conduct 2007. Therefore, Prof. Briggs is to exercise due care and expertise in carrying out negotiations on behalf of Mr. Chamberlain as is expected of someone of his status. Rule 14(1) Rules of Professional Conduct 2007.

5. DUTY OF ACCOUNTABILITY: due to the fiduciary duty a lawyer owes his client, the lawyer shall not do any act wherefore for his personal gain or benefit abuses or takes for granted the confidence reposed in him by his client. Rule 23 Rules of Professional Conduct 2007. Also Rule 54 Rules of Professional Conduct 2007. Therefore, Prof. Briggs has a duty to keep account of money gotten on behalf of Mr. Chamberlain for any transaction entered into on his behalf and not use it for his personal purpose. Rule 23(2) Rules of Professional Conduct 2007.

6. DEDICATION AND DEVOTION TO THE CAUSE OF THE CLIENT: A lawyer to devote his attention, energy and expertise to the service of his client and to act in a manner consistent with the best interest of the client as provided for in Rule 14 of the Rules of Professional Conduct 2007.

7. DUTY TO COMPLY WITH THE REQUIREMENT OF STAMPING AND SEALING OF DOCUMENTS- A lawyer acting in his professional capacity shall not sign or file a legal document i.e. mortgage deeds, deed of assignment, deed of lease etc. Unless there is affixed on it a seal or stamp approved by the Nigerian Bar Association. Rule 10(1) Rules of Professional conduct 2007.  Therefore, Prof. Briggs has to stamp and sign all the legal documents prepared by him on behalf of Mr. Chamberlain.

8. REPRESENTING THE CLIENTS WITHIN THE BOUNDS OF THE LAW: A lawyer in his representation of his client may refuse to aid or participate in a conduct that he believes to be unlawful even though there is some support for the argument that the conduct is legal. Rule 15 of rules of professional conduct 2007. A lawyer should not advise or aid clients in violating the law.

9. CONFLICT OF INTEREST: A lawyer shall not accept a retainer if the exercise of his professional judgment will be affected by his personal interest. He may not acquire proprietary interest in the cause of action he is conducting for the client. See Rule 17 of the rules of professional conduct 2007. Williams v franklin (1961) All Nir 21.