BAR PART 2: LECTURER EXPLAIN THIS

QUESTION FROM STUDENTS AND ANSWERS FROM MR SYLVESTER UDEMEZUE"

QUESTION ONE

"Sir, good evening sir, while reading, I came in contact with something rather contradictory, and so I please need clarifications on that;

As one of the Essentials/Formalities of a power of Attorney, it was stated in one of the materials that it must be sealed, and I recall u saying in class that it may not be a deed, and it is common knowledge that all deeds must be sealed, so my question is, can a document be sealed without it being a deed? If no, then, how come a power of Attorney at all times must be sealed and at the same time it mustn't necessarily be a deed?"

ANSWER FROM LECTURER

(1). Power of attorney need not be by Deed (need not be under seal), except where the proposed attorney's/donee's instructions/powers include EXECUTION OF A DEED. Accordingly, sealing or affixing of a seal is not a sine-qua-non in a power of attorney. 

(2) Even in those instances where Power of Attorney is required to be by Dead, affixing of actual seal is still not essential to its validity. This is based on the rule that actual sealing is not a condition precedent to the validity of any DEED, except where a Corporate Body is a party to the Deed ( is the Donor)

(3).Generally, sealing is a formality of a Deed, but actual sealing is not indispensable; sealing could be presumed from the circumstances of each case.  Hence, a Deed could be presumed or taken to be under seal, even though no ACTUAL SEAL is affixed to it, where there's other evidence to show that parties intended the Contract or document to pass as a Deed (a contract under seal)

We emphasized all the aforesaid in class during the week 5 interactive session and the remedial classes that followed after.

QUESTION TWO

"Good morning sir.

Please does the decree nisi in foreclosure put all the other remedies of the mortgagee in abeyance?"

ANSWER FROM LECTURER

"Mortgagee's remedies are mutually inclusive, with the result that the mere fact that you've exercised one does not preclude you from adopting any other remedy.

That said, the only reasonable manner of applying this privilege/rule is that, where the mortgagee chooses to pursue any one of the remedies, he ought to finish off completely with that one before initiating or resorting to another.

 In other words, while in court for a foreclosure order, the mortgagee cannot, midway into the case in court (i.e., while the case is still pending), advertise and sell off the mortgage property (purportedly in pursuance of the mortgagee's right to sell). That's awkward. And I doubt any court of justice would sanction such an unjust and illegal, CONTEMPTUOUS, action.

First, in such a scenario, the case is still sub-judice, which means no party to the matter is permitted to take any prejudicial steps in respect of the res (subject matter of the suit), else such lawless party is guilty of contempt of court, a gross disrespect for the court. What's more? The legal practitioner acting for the mortgagee in such a scenario could even be taken before the LPDC for professional misconduct. So it's very risky to try to exercise your power of sale while a foreclosure action is yet pending.

Second, if the mortgagee intends to sell, let him just go ahead and sell if the coast is clear (i.e., the power has ARISEN and has BECOME EXERCISABLE), provided he acts in good faith, and does not sell at a negligible price, nor to himself nor to his privies, agent, servant, officer or anyone related or connected to him, and provided he does not connive or collude nor have other dirty or unconscionable deals with the proposed buyer. Let him in such a case just forgets about foreclosure.

Third, it's even absurd for the mortgagee to contemplate sale while the foreclosure action is still in court. Look at it, the subject of the suit is the mortgage property. If you sell the same property which is the subject of your own foreclosure action, have you not rendered the entire suit nugatory? What, a sane man would then ask, is the point in you having gone to court for foreclosure order when you knew, from the onset you'd not have the patience to allow it ro run its full course? Why, is the big question!

We can now see that the whole idea looks absurd. So it goes back to my earlier statement, which I now present to you, by way of suggestion, as the summary and the way out:

(1)Mortgagee's remedies in a mortgage are not mutually exclusive, meaning that the fact the mortgagee has adopted one does not stop his right to go for another one, if he is through with the first remedy and yet part of the mortgage sum and interest remains unliquidated

(2). However mortgagee may not be allowed to take any steps that is calculated to frustrate the foreclosure while the foreclosure action is still pending. So, if the mortgagee sells the mortgage property at a time a foreclosure action already begun (by the mortgagee himself)  is yet pending, the sale is liable to be set aside, and, two, mortgagee risks contempt proceedings and, three, his lawyer (mortgagee's lawyer) risks being proceeded against on grounds of breach of his professional duties to be respectful to the court and to not advise or assist his client to be lawless by taking the laws into his own hands.

QUESTION THREE

"Good morning sir. Please sir concerning the answer you provided, what is your opinion on section 68 of the MPL that repeals the Conveyancing Act. To what extent is the repeal potent?

ANSWER FROM LECTURER:

"Enactment of a local statute on a subject displaces the application of foreign statutes on  the same subject, except where there is a lacuna.  MPL (2010) repeals CA, but LRL (2015) does not expressly so do. So the repeal affects only mortgages and does not operate with respect to other property law transactions. Accordingly, where where there is a lacuna, CA may still come in, depending on the circumstances. Hence, I used the words "recourse MAY be had to provisions of the CA" in areas of lacuna. Note my use of the word, "MAY."  Not automatic nor mandatory.

QUESTION FOUR

Sir, please can you enlighten me on the difference if any between Equity or redemption and reversionary right.

ANSWER FROM TEACHER

Differences between “equity of redemption” and “reversionary interest”

(1)        Reversionary Interest (RI) is a legal interest/estate whereas the Equity of Redemption (ER) is an equitable interest;

(2)        RI is peculiar to only mortgages created by sub-demise whereas ER is applicable to all mortgages, whatever the mode of creation;

(3)        Each can be used to create a SUCCESSIVE MORTGAGE. However, the RI may be used to create a successive LEGAL mortgage whereas the ER can be to create ONLY an equitable mortgage;

(4)        Where mortgage is by sub-demise, it simply means that only a term of years is transferred to the mortgagee. EXAMPLE:

Assuming Mr. Chamberlain obtained a C of O in 2013 over the property in Ikoyi. He has a term of 99 years, which in 2017 remains only 95 years (his unexpired residue as at 2017 is 95 years). So, if Mr Chamberlain borrows money from a Bank and in 2017 transfers only 94 years to the Mortgagee (Bank), Mr Chamberlain would have only one year left (that is, he retains for himself only one year ), which he did not transfer to the Bank. Since he did not transfer everything to the Bank, it is the remaining part of his unexpired residue (the remaining one year) that is now referred to as the REVERSIONARY INTEREST (RI). There would NOT be any reversionary interest in the mortgagor where the mortgage is created by assignment, because in an assignment, the mortgagor would transfer the entire unexpired residue, leaving nothing (no legal interest) for himself;

(5)        Equity of redemption, on the other hand, applies to every mortgage transaction. It refers to the RIGHT (the equitable right) the mortgagor has to continue to be called “the owner” of the property even when he has transferred his interest in the property to a Bank to secure the repayment of a loan. Being the owner, he is entitled to continue to exercise all his ownership rights over the property, even where the property is a subject of mortgage, provided he does not violate the terms of the mortgage. Part of the benefits of this right (ER) is that the mortgagor can decide at ANY TIME (whether or not the legal due date has come or passed) to redeem (recover) his property from the Bank. All he has to do is to repay the entire loan and interest. Once this is done, he is entitled to have his property (interest in it) transferred back to him (re-conveyance/release). The Bank has no right to stop the mortgagor from redeeming the property anytime the mortgagor decides to. Hence, it is said, the Bank must not clog the wheel of redemption. “Once a mortgage always a mortgage,” meaning that the transaction is not a sale (absolute transfer) and accordingly, it is subject to cesser upon redemption ---- i.e., the interest transferred by the mortgagor to the mortgagee (however long and no matter the nature of it) must cease (die) and revert back to the mortgagor once the mortgagor redeems the loan (repays the loan and interest).

This is why the courts frown at and must declare as void any clause in the mortgagee Deed/Instrument which seeks to DELAY or DENY redemption or to TAKE AWAY the right to redeem or otherwise place any hurdle (except that of repaying the loan and interest) in the way of the mortgagor`s right to redeem. This right (ER) is an estate/interest (equitable interest) in the property, which is like a property/title and is capable of being transferred, subject to the existing mortgage.  It arises immediately a mortgage is created. And it does not go away nor die except and until when the mortgage property is validly sold by the mortgagee or a foreclosure order becomes absolute, upon default of the mortgagor. Hence, the ER and the mortgage transaction are said to be like SIAMESE TWINS; both are inseparable.

QUESTION FIVE

"Good morning sir. I wanted to ask if there is by chance any difference in the sub demise applicable to the CA states and that of the PCL States.

This is because in the slide you made reference to sub demise ( of the unexpired residue less few days with provision of cesser on redemption - with respect to the CA states) however in respect  of the PCL  States you said Sub demise ( of a term absolute less by at least one day than the term of years vested in the mortgagor- you excluded the phrase " with provision of cesser on redemption "). Is there any consequence to this omission. Or should I take sub demise as a literarily for all 3 jurisdictions.

ANSWER FROM TEACHER

Sub-demise is the same everywhere. Procedures and systems for creation of sub-demise take the same or similar forms in CA, PCL and MPL. Sub-demise has the same effect in all the jurisdictions. However, some differences exist between SUB-DEMISE in CA on the one hand and Sub-demise in PCL/MPL, on the other. The major differences:

(1). After a Sub-demise in CA, successive legal mortgage not possible because of the common law doctrine of "interesse termini," which is applicable to CA areas in Nigeria 🇳🇬

(2). Hindrance on mortgagee's right to sell, caused by retention of reversionary interest by mortgagor in a mortgage by sub-demise is still there in CA but is absent in both PCL and MPL jurisdictions because the law (PCL/MPL) has statutorily taken care of the problem, unlike CA.

(3). As a result of (2) above, remedial devises may be required in CA where mortgage is by sub-demise, to enable the mortgagee to have an unhindered power to sell, unlike PCL and MPL where such devises are not necessary. 

QUESTIONS SIX

(1) "Good evening sir. We need more explanation on the difference between the term

"ambulatory " and " testamentary" in the features of a will. Thank you sir"

ANSWER FROM TEACHER

Both terms are used to describe Wills and Codicils. 

(1)        AMBULATORY: A will is said to be ambulatory because it is revocable at any time during the life-time of the maker; it is made subject to change at any time before his death. The Latin expression is “ambulatoria voluntas” which denotes the power which a testator or testatrix possesses of altering or amending his Will at any time during his life-time; a man has the power to alter his will or testament as long as he lives. Thus, a Will moves, roves, and could be changed by the testator as often as the testator wishes. See the case of Hattersley v. Bissett 50 N. J. Eq. 577, 25 Atl. 332

(2)        TESTAMENTARY: A Will is said to be testamentary because it is written or made with the intention that it would not take effect nor become operative until after the death of its maker; this is usually expressed in the clause “a Will speaks form the death of the testator.” In other words, the testator or testatrix retains title and control of the properties subject of his/her during his life. This character distinguishes a Will from a conveyance or other dealings or gifts inter vivos, which have an immediate effect or have effect from a known date in the future.

(3)        The two terms are sometimes used interchangeably. If a Will, being ambulatory, is as such revocable at any time during the lifetime of its maker, it means that the maker would not be able to alter, amend or revoke the document after his death. This in effect means, the Will would take effect immediately its maker dies (testamentary) since no further amendment is possible. On the other hand, if a Will as a testamentary instrument “speaks from the death of the testator,” and so does not take effect until his death, this means in effect that it is liable to revocation, amendment, modification or other change any time for as long as the testator is alive (ambulatory)

                                            TO BE CONTINUED!!!!!!!

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