Deeds of Conveyance

Institute of Mortgage Brokers and Lenders of Nigeria

Learning Objectives

By the end of this lesson, the candidate will be able to:

Define a deed of conveyance, distinguish it from a simple contract, and identify the circumstances in which a deed is required under Nigerian law

Enumerate and explain the four essential elements of a valid deed: signing, sealing, delivery, and attestation

Describe the formal parts of a deed of conveyance — introductory, operative, miscellaneous, and concluding — and state the purpose served by each

Apply the rule in Savannah Bank of Nigeria Ltd v. Ajilo (1989) regarding Governor’s consent and its endorsement on deeds

Explain the requirements governing engrossment, alterations, and erasures in executed deeds

Outline the process of perfection, including stamping within thirty days, obtaining consent, and registration at the Lands Registry

Compare execution requirements under the Conveyancing Act 1881 and the Property and Conveyancing Law 1959

Distinguish the registration regimes operating in Lagos, the Federal Capital Territory (Abuja), and the various state registries

State and apply the five methods of proving title to land established by the Supreme Court in Idundun v. Okumagba (1976)

Introduction

A deed of conveyance occupies a position of singular importance in Nigerian property law, for it is the instrument by which the legal estate in land is transferred from one party to another. Whereas an ordinary contract may be evidenced by a simple written memorandum or even, in certain limited circumstances, by oral agreement, the conveyance of a legal interest in land has been required, since at least the Statute of Frauds 1677 and its Nigerian successors, to be effected by deed. The distinction between a deed and a mere written instrument lies not in the presence of words alone but in the formalities attending execution: a deed must be signed, sealed, delivered, and attested before it acquires the character that the law demands for the transfer of proprietary interests.

The significance of these formalities cannot be overstated. In Stanbic IBTC Bank Plc v. Longterm Global Capital Ltd (2012) LPELR-19815 (CA), the Court of Appeal reiterated the settled principle that a document which fails to satisfy the formal requirements of a deed is incapable of passing a legal estate, however clear the intention of the parties may be. Nigerian courts have consistently refused to treat defective instruments as effective conveyances, even where substantial consideration has passed and the purchaser has entered into possession. The formalities are not empty ritual; they are the mechanism through which the legal system distinguishes transactions that bind all the world from those that create only personal obligations between the contracting parties.

For the mortgage broker and the lender, the practical consequences are immediate and far-reaching. A mortgage secured upon a defectively conveyed title is itself defective. A deed that has not been stamped within the prescribed period cannot be tendered in evidence without payment of the penalty. A conveyance that has not received Governor’s consent under section 22 of the Land Use Act 1978 is void ab initio, as the Supreme Court declared emphatically in Savannah Bank of Nigeria Ltd v. Ajilo (1989). Registration, stamping, and consent are not administrative inconveniences to be attended to at leisure; they are conditions upon which the enforceability of the entire transaction depends.

This lesson examines the deed of conveyance comprehensively. It begins with the essential elements that distinguish a deed from all other written instruments, proceeds through the formal parts into which a deed is conventionally divided, addresses the critical question of Governor’s consent and its endorsement, considers the rules governing engrossment and alterations, and concludes with the process of perfection — stamping, consent, and registration. Throughout, the exposition draws upon the statutory framework provided by the Conveyancing Act 1881 (applicable in the former Northern and Eastern Regions and the Federal Capital Territory) and the Property and Conveyancing Law 1959 (applicable in Lagos and the former Western Region), as well as relevant judicial authorities from the Supreme Court, the Court of Appeal, and the various State High Courts.

Essential Elements of a Valid Deed

A deed is distinguished from an ordinary written instrument by the presence of four essential elements: signing, sealing, delivery, and attestation. Each of these elements performs a distinct legal function, and the absence of any one of them may, depending upon the applicable statute and the circumstances of the case, render the instrument ineffective as a deed. The requirements are cumulative, not alternative; a document that is signed and sealed but never delivered has not become a deed in the eyes of the law, and a document that is delivered without attestation will be rejected for registration purposes.

Signing

The requirement of signing is the most elementary and the most intuitive: the grantor must affix his or her signature, or make his or her mark, upon the face of the instrument. At common law, a signature could take any form sufficient to indicate the party’s intention to authenticate the document. In the Nigerian context, the Conveyancing Act 1881, section 73, contemplates signature by name or by mark, and the courts have accepted thumb-impressions as a valid mode of execution where the party is illiterate, provided the formalities of attestation are observed. Under the Property and Conveyancing Law 1959, section 77, signature by an authorised agent is permitted if the agent’s authority is itself conferred by deed — a requirement that links the law of deeds to the law of powers of attorney, which is treated separately in Lesson 9.

Where a deed is executed by a corporation, the signature requirement is satisfied by the affixing of the corporate seal in the manner prescribed by the corporation’s articles or memorandum of association. The Companies and Allied Matters Act 2020 (CAMA), section 101, provides that a document signed by a director and the secretary, or by two directors, and expressed to be executed by the company has the same effect as if executed under the common seal. This provision, which mirrors the English Companies Act 2006, section 44, has simplified corporate conveyancing considerably, although many Nigerian solicitors continue to insist upon the seal as a matter of prudent practice.

The place of signature is conventional rather than mandatory. Nigerian deeds are customarily signed at the foot of the testimonium clause, with additional signatures or initials placed on each page of a multi-page instrument. Although no statute prescribes signing at the foot, the practice is so well established that departure from it may invite suspicion, and the registrar of deeds may require explanation before accepting a non-conforming instrument.

Sealing

At common law, the seal was the defining characteristic of a deed: a document under seal was a deed; a document without a seal was not. The seal originally took the form of an impression in wax bearing the grantor’s coat of arms or other device. Over time, the formality was relaxed, and by the nineteenth century English courts accepted a paper wafer or even a printed circle containing the letters "L.S." (locus sigilli) as a sufficient seal.

In Nigeria, the position varies according to the governing statute. Under the Conveyancing Act 1881, which applies in the northern and eastern states and the FCT, the requirement of sealing remains in force. Section 73 of the Act provides that a deed shall be signed, sealed, and delivered. The courts applying the 1881 Act have not dispensed with the seal, although they have accepted modern forms — adhesive wafers, embossed stamps, and printed circles — as satisfying the requirement. The reasoning is pragmatic: the seal serves an evidentiary function, alerting the signatory to the solemnity of the act, and any device that fulfils that function is acceptable.

Under the Property and Conveyancing Law 1959, applicable in the western states and Lagos, the seal retains its formal status but its absence is not necessarily fatal. Section 67 of the PCL provides that an instrument signed by the maker and attested by at least one witness shall be deemed to be sealed, whether or not a physical seal is present. This deemed-sealing provision substantially aligns the PCL jurisdictions with modern English practice, where the requirement of sealing was abolished by the Law of Property (Miscellaneous Provisions) Act 1989. Practitioners operating in Lagos and the western states may therefore dispense with the physical seal, provided the instrument is properly signed and attested; those operating in the northern and eastern states should continue to ensure that a seal, in whatever accepted form, is affixed.

Delivery

Delivery is the act by which the grantor manifests an intention that the deed shall become operative. Delivery in law does not require physical transfer of the document to the grantee; it is a question of intention, not of manual tradition. In Alan Wibberley Building Ltd v. Insley (1999) 1 WLR 894, the House of Lords confirmed that a deed is delivered when the maker, by words or conduct, indicates an intention to be bound by it, even if the deed remains in the maker’s own custody.

Nigerian courts have adopted the same approach. In Adekunle v. Adekunle (1994) 5 NWLR (Pt 346) 540, the Court of Appeal held that delivery was established where the grantor executed the deed in the presence of the grantee’s solicitor and handed the engrossed copy to that solicitor for registration. The court emphasised that the question in every case is whether the grantor evinced an intention, manifested by some unequivocal act or declaration, that the deed should take effect forthwith or upon the fulfilment of a condition.

A distinction must be drawn between absolute delivery and delivery in escrow. Where a deed is delivered in escrow, it is placed in the hands of a third party (typically a solicitor or an escrow agent) with a direction that it shall not become operative until a specified condition is satisfied — for example, the payment of the purchase price or the grant of Governor’s consent. Upon fulfilment of the condition, the deed takes effect from the date of the original delivery in escrow, not from the date of fulfilment. This doctrine, which derives from the common law and has been applied in Nigeria, has obvious utility in property transactions where multiple conditions must be satisfied before completion.

Attestation

Attestation is the subscription of a witness’s signature to the deed, confirming that the witness saw the grantor execute the instrument. Attestation serves an evidentiary purpose: it provides independent proof of the fact and manner of execution, and it guards against subsequent disputes as to whether the grantor’s signature is genuine.

Under the Conveyancing Act 1881, section 73, a deed must be attested by at least one witness. The witness need not be a solicitor, although in Nigerian practice the attesting witness is almost invariably a legal practitioner. Under the Property and Conveyancing Law 1959, section 77(2), attestation by one witness is sufficient, but section 77(3) provides that where the party executing the deed is unable to write, the deed must be attested by two witnesses, one of whom shall read and explain the contents of the deed to the executing party in a language that the party understands. This illiteracy proviso, which has no direct equivalent in the 1881 Act but reflects a longstanding equitable principle, is of considerable practical importance in a jurisdiction where a significant proportion of land transactions involve parties who cannot read or write English.

The attestation clause customarily appears at the end of the deed, immediately following the testimonium clause, and records the name, address, and occupation of the attesting witness. A defective attestation clause does not necessarily invalidate the deed, but it may render the deed inadmissible in evidence or incapable of registration. The prudent practitioner ensures that the attestation clause is complete in every particular, including the date of attestation, the place of execution, and a statement that the witness was present and saw the grantor execute the deed.

Formal Parts of a Deed of Conveyance

A deed of conveyance is conventionally divided into four groups of formal parts: the introductory parts, the operative parts, the miscellaneous parts, and the concluding parts. This division, which derives from English conveyancing practice and has been adopted without material modification in Nigeria, serves both a practical and a pedagogical function. Practically, it ensures that each element of the transaction is addressed in a logical sequence, so that the deed, when read as a whole, presents a complete and self-contained record of the transfer. Pedagogically, the division provides a framework for analysis, enabling the student and the practitioner to identify the function of each clause and to detect omissions or errors.

Introductory Parts

The Date

The date of a deed is the date upon which it is executed — that is, the date upon which it is signed, sealed, and delivered. The date is customarily stated at the commencement of the deed, in the formula "This deed of conveyance is made the [day] day of [month] [year]." The date is significant for several reasons: it fixes the time from which the estate passes, it determines the period within which the deed must be stamped, and it provides a reference point for subsequent enquiries into the chain of title.

Where a deed is delivered in escrow, the date stated on the face of the instrument may differ from the date of effective delivery. The law treats the deed as taking effect from the date of the original delivery in escrow, but for registration and stamping purposes the date stated on the instrument is ordinarily treated as the operative date. Solicitors are advised to ensure that the date on the face of the deed corresponds to the date on which the last signatory executes, so as to avoid discrepancies that may attract queries from the Lands Registry or the stamp duties authority.

The Parties

The parties clause identifies the grantor (vendor, assignor, or mortgagor, as the case may be) and the grantee (purchaser, assignee, or mortgagee). Each party is described by full legal name, address, and occupation, and is assigned a short-form designation — "the Vendor," "the Purchaser" — for ease of reference throughout the instrument. Where a party acts in a representative capacity (as trustee, executor, or attorney), the capacity is stated, and the instrument conferring the representative authority is recited.

Particular care must be taken where a party is a corporate body. The full registered name of the company must be stated, together with its registered address and its registration number under the Companies and Allied Matters Act 2020. Where a corporate body executes a deed through an attorney, the power of attorney must be recited and, where required, registered. Failure to describe a corporate party accurately may give rise to disputes as to whether the deed binds the company, particularly where the company’s name has changed or where the transaction is challenged by a liquidator.

The Recitals

The recitals set out the background to the transaction. They narrate the history of the title, identify the documents under which the grantor claims, and state the agreement that has led to the execution of the deed. Recitals are conventionally divided into narrative recitals (which trace the title) and introductory recitals (which state the agreement). A typical narrative recital might read: "Whereas the Vendor is seised of the property described in the Schedule hereto for an estate in fee simple by virtue of a Certificate of Occupancy dated the 15th day of March 2010 and registered as No. 47 at Page 47 in Volume 2341 of the Register of Deeds kept at the Lagos State Lands Registry."

Recitals are not operative; they do not of themselves transfer any estate or create any obligation. Their function is explanatory and evidentiary. Under section 4 of the Conveyancing Act 1881 and section 115 of the Property and Conveyancing Law 1959, recitals that are twenty years old at the date of the transaction are deemed sufficient evidence of the facts recited, unless the contrary is proved. This rule has obvious utility in the investigation of title, for it enables a purchaser to rely upon the recitals in an old deed without requiring independent proof of each link in the chain.

The drafting of recitals requires precision and economy. Unnecessary verbiage obscures the chain of title and invites challenge. The recitals should identify each root of title, state the nature of the estate held by the grantor, and, where the transaction involves a sale, state the consideration. Where Governor’s consent has been obtained, the consent is recited by reference to its date and the authority that granted it.

Operative Parts

The Testatum (Operative Words of Grant)

The testatum is the clause that effects the transfer. It is the heart of the deed, for without operative words of grant no estate passes. The testatum customarily commences with the phrase "Now this deed witnesseth as follows" and proceeds to state the consideration, the receipt of which is acknowledged, and the words of grant. In a conveyance of freehold land, the operative words are "the Vendor hereby conveys to the Purchaser" or, under section 56 of the Conveyancing Act 1881, simply "conveys." Under the Property and Conveyancing Law 1959, section 62, the word "conveys" is sufficient to pass all the estate and interest that the grantor has power to convey.

The operative words must be apt to effect the particular transaction intended. A conveyance of a leasehold interest is effected by the word "assigns," not "conveys." A mortgage by way of legal charge is effected by the words "charges by way of legal mortgage." The use of inappropriate operative words does not necessarily invalidate the deed, for the courts will construe the instrument as a whole and give effect to the manifest intention of the parties; but it may create ambiguity and delay, and the careful drafter will use the precise words that correspond to the nature of the transaction.

The testatum also contains the words of limitation, which define the quantum of the estate granted. At common law, the words "to X and his heirs" were required to create a fee simple; the omission of "and his heirs" passed only a life estate. This technical rule has been abolished by statute in Nigeria. Under the Conveyancing Act 1881, section 51, and the Property and Conveyancing Law 1959, section 61, a conveyance of freehold land expressed to be made to the grantee "in fee simple" or without words of limitation passes the fee simple or other the whole interest that the grantor had power to convey.

The Habendum

The habendum defines the estate or interest that the grantee is to hold. It commences with the formula "To have and to hold" (habendum et tenendum) and states the estate granted. In a conveyance of the fee simple, the habendum reads "To have and to hold the said property unto and to the use of the Purchaser in fee simple." The habendum is technically distinct from the testatum: the testatum identifies the property and the parties; the habendum defines the quantum of the estate. In modern conveyancing, the distinction is largely formal, for the words of limitation in the testatum ordinarily suffice to define the estate; but the habendum remains a conventional part of every well-drafted Nigerian deed.

Where the conveyance is of a leasehold interest, the habendum specifies the term of years, the commencement date, and the rent reserved. Where the conveyance is by way of mortgage, the habendum states the mortgagee’s estate and the proviso for redemption. The habendum thus adapts to the nature of the transaction, and its wording must be consistent with the operative words of the testatum. Inconsistency between the testatum and the habendum is construed, as a general rule, in favour of the habendum, on the ground that the habendum, being the more specific clause, should govern the quantum of the estate.

The Reddendum

The reddendum is the clause by which the grantor reserves something out of the grant — typically a rent. In a conveyance of the freehold, the reddendum is unusual, since the vendor does not ordinarily reserve a continuing interest. In a lease, however, the reddendum is essential, for it specifies the rent reserved to the landlord and the times and manner of payment. The reddendum customarily commences with the words "Yielding and paying therefor" and states the annual rent, the due dates, and the mode of payment.

In the context of a conveyance on terms (for instance, a sale subject to a ground rent), the reddendum creates a rentcharge — an annual sum payable by the grantee to the grantor, charged upon the land. Rentcharges are relatively uncommon in Nigerian practice, but they are not unknown, particularly in transactions involving long leases of commercial property. The drafter must ensure that the reddendum is consistent with the habendum and the covenants, and that the rent reserved is clearly stated and capable of calculation.

Miscellaneous Parts

Covenants

Covenants are promises made by one party or both parties in the deed. In a conveyance, the vendor’s covenants typically include a covenant for title (that the vendor has good title and the right to convey), a covenant for quiet enjoyment (that the purchaser shall enjoy the property without disturbance by the vendor or persons claiming through the vendor), a covenant against encumbrances (that the property is free from charges and encumbrances other than those disclosed), and a covenant for further assurance (that the vendor will do all acts reasonably necessary to perfect the purchaser’s title).

Under the Conveyancing Act 1881, section 7, a person who conveys as "beneficial owner" is deemed to give the covenants for title implied by the Act, and no express covenant is required. Under the Property and Conveyancing Law 1959, section 76, the implied covenants are similarly incorporated by the use of the statutory formula. These implied covenants are a major convenience in conveyancing, for they spare the drafter the necessity of setting out at length the standard covenants, while affording the purchaser the protection that those covenants confer.

In addition to the standard covenants for title, a deed may contain restrictive covenants (limiting the use to which the grantee may put the property), positive covenants (requiring the grantee to perform specified acts, such as the erection of a boundary wall), and indemnity covenants (requiring the grantee to indemnify the grantor against liability under covenants to which the grantor remains subject). Restrictive covenants run with the land and are enforceable against successors in title; positive covenants do not, as a general rule, run with the land at law, although equity may enforce them in certain circumstances, particularly through the doctrine of building schemes.

Provisos and Conditions

A proviso is a clause that qualifies or limits the operation of the grant. The most common proviso in a mortgage deed is the proviso for redemption, which provides that if the mortgagor repays the principal and interest on the appointed day, the mortgagee’s estate shall cease and the mortgagor shall be entitled to have the property reconveyed. Provisos may also restrict the use of the property, require the maintenance of insurance, or create conditions upon which the grant depends.

A condition is strictly a qualification attached to the estate itself, such that the estate may be enlarged, diminished, or defeated upon the occurrence of a specified event. A condition subsequent (a condition that, if fulfilled, defeats the estate) must be clearly expressed; the law does not favour forfeitures, and ambiguous conditions are construed against the person seeking to enforce them. In Ajayi v. Adebiyi (2012) 11 NWLR (Pt 1311) 357, the Court of Appeal reiterated that a condition subsequent must be certain, lawful, and not repugnant to the estate granted.

The Parcels Clause and the Schedule

The parcels clause describes the property conveyed. It identifies the property by reference to its physical boundaries, its plot number, its survey plan, and such other particulars as are necessary to distinguish it from all other properties. In Nigerian practice, the parcels clause is customarily supplemented by a schedule, which sets out the property description in detail and may include or refer to a survey plan. The survey plan must be prepared by a licensed surveyor and approved by the Surveyor-General of the State or the Federal Capital Territory.

Accuracy in the parcels clause is essential. In Piaro v. Tenalo (1976) 12 SC 31, the Supreme Court emphasised that a conveyance is effective only to the extent that the property conveyed is identifiable. Where the parcels clause is ambiguous, the court may admit extrinsic evidence — including evidence of the physical boundaries, the surrounding properties, and the survey plan — to resolve the ambiguity; but where the description is so vague that no property can be identified, the conveyance fails entirely.

Concluding Parts

The Testimonium

The testimonium clause is the clause that introduces the signatures of the parties. It customarily reads: "In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written." The testimonium performs no operative function; its purpose is formal and evidentiary, signalling the transition from the operative clauses to the execution. Nevertheless, the testimonium is a conventional part of every Nigerian deed, and its omission, while not fatal, is irregular and may provoke enquiry.

The Attestation Clause

The attestation clause records the fact of execution and the identity of the attesting witness or witnesses. As discussed above, attestation is a substantive requirement under both the Conveyancing Act 1881 and the Property and Conveyancing Law 1959. The attestation clause customarily states: "Signed, sealed, and delivered by the within-named [party] in the presence of [witness’s name, address, and occupation]." Where the executing party is illiterate, the attestation clause must record that the contents of the deed were read over and explained to the party in a language understood by the party, and that the party appeared to understand and approve the contents before making his or her mark.

The attestation clause is the final part of the deed proper. After the attestation clause, the deed may contain endorsements (such as the endorsement of Governor’s consent), stamps (indicating payment of stamp duty), and registration particulars (recording the volume and folio at which the deed is registered). These endorsements and stamps are not, strictly speaking, parts of the deed itself; they are evidence of compliance with the statutory requirements that attend the perfection of the deed.

Endorsement of Governor’s Consent

Section 22 of the Land Use Act 1978 provides that it shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease, or otherwise howsoever without the consent of the Governor. The requirement of consent is mandatory and unqualified; no exception is made for transactions between family members, between companies in the same group, or between vendor and purchaser where the consideration has been paid and possession delivered.

The consequences of non-compliance were definitively settled by the Supreme Court in the leading case of Savannah Bank of Nigeria Ltd v. Ajilo (1989) 1 NWLR (Pt 97) 305.

Savannah Bank of Nigeria Ltd v.

Ajilo (1989) 1 NWLR (Pt 97) 305The respondent, Mr.

Ajilo, obtained a loan from Savannah Bank and executed a mortgage over his property in Ibadan as security.

The mortgage deed was duly signed, sealed, delivered, and attested.

The property was subject to a statutory right of occupancy granted by the Governor of Oyo State.

At no point before or after execution was the Governor’s consent obtained under section 22 of the Land Use Act.When Mr.

Ajilo defaulted on the loan, the bank sought to exercise its power of sale.

Mr.

Ajilo challenged the validity of the mortgage on the ground that Governor’s consent had not been obtained.

The case proceeded through the High Court and the Court of Appeal to the Supreme Court.The Supreme Court, in a unanimous decision, held that a mortgage executed without the Governor’s consent as required by section 22 of the Land Use Act is void ab initio — not merely voidable, but void from the outset and incapable of conferring any rights upon the mortgagee.

The Court rejected the argument that consent could be obtained retrospectively or that the absence of consent was a mere irregularity curable by subsequent compliance.

Obaseki JSC, delivering the lead judgment, stated that the requirement of consent is a condition precedent to the validity of the transaction, and that any transaction executed in breach of section 22 is null and void and of no effect whatsoever.The decision sent shockwaves through the Nigerian banking industry.

Lenders who had advanced funds on the security of mortgages executed without consent found themselves unsecured creditors.

The case established, beyond any possibility of doubt, that Governor’s consent must be obtained before the deed of conveyance or mortgage is treated as complete and enforceable.

In practice, solicitors now insist upon obtaining and endorsing the consent before releasing funds or completing the transaction.

The endorsement of Governor’s consent is effected by stamping or writing on the face of the deed a notation that consent has been granted, together with the date, the reference number of the consent, and the signature or seal of the consenting authority. In Lagos State, the practice is streamlined through the Lagos State Lands Bureau, which issues a formal letter of consent and endorses the deed. In the Federal Capital Territory, the Minister of the FCT exercises the power of consent through the Abuja Geographic Information System (AGIS). In other states, the practice varies, but the essential requirement is uniform: consent must be obtained, evidenced, and endorsed upon the deed before the deed is presented for registration.

The timing of consent in relation to execution has generated considerable litigation. The preferred practice, which has gained near-universal acceptance since Savannah Bank v. Ajilo, is to obtain consent before execution, or at least to treat the deed as delivered in escrow until consent is granted. Where consent is obtained after execution but before registration, the question arises whether the deed is void from the outset or merely unenforceable until consent is obtained. The weight of authority, following Savannah Bank, treats the deed as void ab initio in the absence of consent, regardless of whether consent is subsequently obtained. The prudent course is therefore to secure consent before any funds are released or any interest is treated as having passed.

Engrossment, Alterations, and Erasures

Engrossment

Engrossment is the preparation of the final, clean copy of the deed for execution. The draft deed, having been approved by the solicitors for both parties, is engrossed — that is, copied in its final form on durable paper or parchment, free from interlineations, erasures, or corrections. In contemporary Nigerian practice, engrossment is effected by printing; the era of handwritten deeds has largely passed, although hand-engrossed deeds remain valid and are occasionally encountered in transactions involving older titles.

The engrossed deed is customarily prepared in duplicate or triplicate: one copy for the grantee (the original), one for the grantor (the counterpart), and, where required, one for the Lands Registry. The original is executed by the grantor and delivered to the grantee; the counterpart is executed by the grantee and retained by the grantor. Both copies are stamped and, where required, endorsed with Governor’s consent. The distinction between original and counterpart is largely formal; each has the same legal effect when properly executed.

Alterations

Any alteration made to a deed after execution is presumed, in the absence of evidence to the contrary, to have been made after execution and without the consent of the parties. This presumption, which derives from the common law and has been applied consistently by Nigerian courts, means that an alteration apparent on the face of a deed may render the deed void or, at the very least, raise a prima facie case of fraud or irregularity.

The rule is stringent. In Oshodi v. Balogun (1936) 4 WACA 1, the West African Court of Appeal held that an unexplained alteration in a material part of a deed rendered the deed inoperative as to the altered provision. The term "material" is construed broadly: any alteration that affects the identity of the parties, the description of the property, the consideration, or the operative words of grant is a material alteration. An alteration in an immaterial part — such as the correction of a typographical error in the attestation clause — does not invalidate the deed, but even immaterial alterations should be initialled by the parties and noted in the margin.

To avoid the consequences of the presumption, any alteration made before execution should be initialled by all parties and noted in the attestation clause or in a memorandum appended to the deed. Where an alteration is necessary after execution, the proper course is to execute a supplemental deed or deed of rectification, rather than to amend the original instrument. The supplemental deed recites the error, states the correction, and is executed, stamped, and registered in the same manner as the original deed.

Erasures

An erasure is the removal of text from the face of a deed, whether by scraping, chemical treatment, or obliteration. The law regards erasures with even greater suspicion than alterations, for an erasure, unlike an interlineation, is designed to conceal the original text. Where an erasure is apparent on the face of a deed, the court will presume that it was made after execution and without authority, and the burden of proving the contrary falls upon the party seeking to rely upon the deed.

In practice, erasures are avoided by the use of printed engrossment. Where a typographical error is discovered after printing but before execution, the correct course is to reprint the affected page or, if the error is minor, to strike through the erroneous text with a single line (so that the original text remains legible), insert the correct text, and have all parties initial the correction. The use of correction fluid, adhesive labels, or any other device that obscures the original text is impermissible and will attract adverse comment from the Lands Registry and, in the event of litigation, from the court.

Perfection of a Deed of Conveyance

Perfection is the process by which a deed of conveyance, having been executed, is rendered fully enforceable and admissible in evidence. In Nigeria, perfection comprises three steps: stamping, obtaining Governor’s consent (where required), and registration. Each step is governed by specific statutory provisions, and failure to complete any step may have serious consequences for the enforceability of the deed and the admissibility of the instrument in court proceedings.

Stamping

The Stamp Duties Act (Cap S8, Laws of the Federation of Nigeria 2004, as amended and now consolidated under the Finance Acts) requires that every deed of conveyance be stamped within thirty days of execution. The stamp duty payable on a conveyance is calculated as a percentage of the consideration or of the value of the property, whichever is higher. The rate varies according to the nature of the transaction and the state in which the property is situated; in Lagos State, the rate for a conveyance on sale is typically three per cent of the consideration.

A deed that is not stamped within thirty days may be stamped late upon payment of a penalty. Section 23 of the Stamp Duties Act provides that an unstamped instrument, or an instrument insufficiently stamped, shall not be admitted in evidence in any civil proceedings, and shall not be acted upon by any public officer. The penalty for late stamping is calculated at a prescribed rate for each day of delay, subject to a maximum. The practical consequence is that a party who fails to stamp a deed within the prescribed period will incur additional expense and may be unable to rely upon the deed in litigation until the penalty is paid and the stamp affixed.

The Federal Inland Revenue Service (FIRS) administers stamp duties on transactions involving federal government agencies and inter-state transactions, while state internal revenue services administer duties on intra-state transactions. The distinction between federal and state jurisdiction over stamp duties was clarified by the Supreme Court in Attorney-General of Ogun State v. Aberuagba (1985) 1 NWLR (Pt 3) 395, which held that the federal government has exclusive jurisdiction over stamp duties in respect of instruments executed between persons or bodies corporate residing or located in different states.

Governor’s Consent

The requirement of Governor’s consent under section 22 of the Land Use Act has been discussed at length above. For purposes of perfection, it is sufficient to note that consent must be obtained and endorsed upon the deed before the deed is presented for registration. The Lands Registry will not accept for registration a deed of conveyance or mortgage in respect of land held under a statutory right of occupancy unless the Governor’s consent is endorsed upon the deed or a certified copy of the consent letter is produced.

The process for obtaining consent varies from state to state. In Lagos State, the application is made to the Lands Bureau of the Ministry of Lands and Housing, and the processing time has been reduced, in recent years, to approximately sixty to ninety days. In the Federal Capital Territory, the application is processed through AGIS. In other states, the application is made to the office of the Commissioner for Lands or the Land Use and Allocation Committee. The application is typically accompanied by the draft deed, a survey plan, evidence of payment of ground rent, tax clearance certificates, and, in some states, a development levy.

Registration

Registration is the final step in the perfection of a deed of conveyance. The purpose of registration is to give public notice of the transaction and to protect the grantee’s title against competing claims. In Nigeria, two systems of registration operate: registration of instruments (deed registration) and registration of title (title registration).

The deed registration system, which is the older and more widespread system, requires the registration of every instrument affecting land. The instrument is presented to the Lands Registry, where it is copied into the register, assigned a volume and folio number, and endorsed with registration particulars. The register is open to public inspection, and any person may search the register to ascertain the instruments that have been registered in respect of a particular property. The Registration of Titles Law (applicable in Lagos and certain other states) provides a more comprehensive system, under which the register itself is evidence of title, and registration confers indefeasibility subject to specified exceptions.

The consequences of non-registration are significant. Under the Land Instruments Registration Law (applicable in the former Western Region), an unregistered instrument is inadmissible in evidence in any court as proof of title to the land affected by the instrument. Under the Land Registration Act (applicable in the former Northern and Eastern Regions), non-registration does not affect the validity of the instrument as between the parties, but renders it void against a subsequent purchaser for value who registers without notice of the prior unregistered instrument. The practical effect is that, regardless of the applicable registration statute, failure to register exposes the grantee to the risk of losing priority to a subsequent registered transaction.

Execution Requirements: Conveyancing Act 1881 and Property and Conveyancing Law 1959

The two principal statutes governing the execution of deeds in Nigeria — the Conveyancing Act 1881 and the Property and Conveyancing Law 1959 — differ in several material respects, and the practitioner must be alert to the differences when acting in transactions that span jurisdictional boundaries.

Execution Under the Conveyancing Act 1881

The Conveyancing Act 1881 applies in the states of the former Northern and Eastern Regions and in the Federal Capital Territory, Abuja. Under section 73 of the Act, a deed must be signed, sealed, and delivered by the maker. The sealing requirement remains in full force; a document that is signed and delivered but not sealed is not a deed under the 1881 Act. Attestation by one witness is required. The Act does not prescribe a specific form for the seal, and the courts have accepted adhesive wafers, embossed impressions, and printed circles as sufficient.

Section 44 of the Act governs the formalities of deeds generally and provides that a deed shall be void if it purports to convey land to a fictitious or non-existent grantee. Section 56 provides that a deed shall be effectual to pass the interest intended to be conveyed without the necessity of a separate livery of seisin or enrolment — provisions that were revolutionary in 1881 but are now taken for granted. The Act does not contain a deemed-sealing provision equivalent to section 67 of the PCL, and practitioners operating under the 1881 Act should therefore ensure that a seal is present in every case.

Execution Under the Property and Conveyancing Law 1959

The Property and Conveyancing Law 1959 applies in the states of the former Western Region, including Lagos, Ogun, Oyo, Ondo, Osun, Ekiti, and Edo. Section 77 of the PCL governs execution and provides that a deed shall be signed by the maker and attested by at least one witness. Section 67, as noted above, provides that an instrument signed and attested shall be deemed to have been sealed, whether or not a physical seal is present. The effect of this provision is to relax, though not to abolish, the requirement of sealing in PCL jurisdictions.

Section 77(3) of the PCL imposes additional requirements where the executing party is illiterate. The deed must be read over and explained to the party in a language that the party understands, in the presence of the attesting witness, and the attestation clause must record that this has been done. An illiteracy jurat — a statement that the deed was read and explained — is endorsed on the deed, typically in the following form: "Read over and explained to the within-named [party] in the [language] language by [interpreter’s name] in my presence, and the said [party] appeared to understand and approve the contents of this deed before affixing his/her thumb-impression thereto."

The PCL also contains provisions governing execution by corporations (section 74, which permits execution under the common seal or by authorised signatories), execution by attorneys (section 77(1), which requires the power of attorney to be itself a deed), and execution by minors and persons under disability (section 79, which requires the deed to be executed by the minor’s guardian or by a person appointed by the court). These provisions, taken together, create a comprehensive code of execution that addresses the circumstances most commonly encountered in Nigerian conveyancing practice.

Comparative Summary

The principal differences between the two statutes may be summarised as follows. First, the Conveyancing Act 1881 requires a physical seal; the PCL deems a signed and attested instrument to be sealed. Second, the PCL contains an express illiteracy proviso; the 1881 Act does not, although the common law and equitable principles supply an equivalent protection. Third, the PCL provides a comprehensive code for execution by corporations, attorneys, and persons under disability; the 1881 Act is less detailed, and recourse must be had to the general law and to CAMA 2020. Fourth, the PCL implies covenants for title by reference to statutory formulae (section 76); the 1881 Act implies covenants by reference to the capacity in which the grantor conveys (sections 7–8).

For the mortgage broker operating across multiple Nigerian jurisdictions, the practical guidance is straightforward: ascertain which statute governs the property in question, ensure that the deed complies with the execution requirements of that statute, and, where there is any doubt, include both a physical seal and an illiteracy jurat, so that the deed will be valid under either regime.

Nigerian Practice: Lagos, Abuja, and State Registries

Lagos State

Lagos State operates the most developed land registration system in Nigeria. The Lagos State Lands Registry, located at Alausa, Ikeja, maintains registers of deeds, survey plans, and certificates of occupancy. The Lagos State Land Registration Law 2015 introduced an electronic registry, enabling online searches and reducing the time required for registration. The Lagos State Lands Bureau processes Governor’s consent applications, and the Lagos State Internal Revenue Service administers stamp duties on intra-state transactions.

In Lagos practice, the typical conveyancing timeline from exchange of contracts to completion of registration is approximately ninety to one hundred and twenty days, assuming that all documents are in order and that Governor’s consent is obtained without delay. The major sources of delay are consent processing (sixty to ninety days), survey approval (where a new survey is required), and the occasional backlog at the Lands Registry. Solicitors operating in Lagos are expected to conduct a search at the Lands Registry before completion, to verify that the property is not subject to any encumbrances, lis pendens, or prior unregistered instruments.

The Federal Capital Territory (Abuja)

In the Federal Capital Territory, the Minister of the FCT exercises the powers of the Governor under the Land Use Act. The Abuja Geographic Information System (AGIS) serves as the primary registry for land transactions in the FCT. AGIS maintains a computerised database of all rights of occupancy, consents, and registered instruments. The processing of consent applications and registration of deeds is conducted through AGIS, and the system has considerably reduced the delays that previously characterised land transactions in the capital.

A distinctive feature of the FCT regime is that all land within the Territory is held under statutory rights of occupancy granted by the Minister. There is no customary right of occupancy in the FCT, and the distinction between urban and non-urban land, which is significant in the states, does not arise. The result is a relatively uniform and predictable registration process, although disputes over the boundaries of allocated plots and the validity of revocations remain a source of litigation.

State Registries

Outside Lagos and the FCT, the quality and efficiency of land registries vary considerably. States such as Kaduna and Kano have invested in modernisation, with the support of the World Bank and other international agencies, and have established geographic information systems (KADGIS in Kaduna, KANGIS in Kano) that digitise the registration process. Other states continue to operate manual registries, with the attendant risks of lost files, delayed registrations, and incomplete records.

The practitioner operating in any state must ascertain the applicable registration law, the identity and location of the registrar, and the fees and procedures for registration. In some states, the Lands Registry is a division of the High Court; in others, it is a department of the Ministry of Lands. The procedures for search, registration, and consent vary, and solicitors are advised to consult the state’s practice directions and to maintain a working relationship with the registrar’s office.

The absence of a unified national land registry is a recognised weakness of the Nigerian land tenure system. The 2009 Presidential Technical Committee on Land Reform recommended the establishment of a National Land Information System (NLIS) to harmonise state registries and enable inter-state searches. Progress has been uneven; as at the date of this lesson, approximately twelve states have fully digitised registries, while the remainder continue to operate partly or entirely on paper. The mortgage broker should factor the state of the local registry into the due-diligence timeline and budget, and should be prepared for longer processing times in states with manual systems.

Proving Title to Land: Idundun v. Okumagba (1976)

The question of how title to land is proved is fundamental to every conveyancing transaction. A purchaser must be satisfied, before parting with the purchase price, that the vendor has title to convey. A mortgagee must be satisfied, before advancing funds, that the mortgagor’s title is sufficient to support the security. The law of evidence, as applied to land transactions, provides the framework for this enquiry.

The leading authority on the methods of proving title to land in Nigeria is the decision of the Supreme Court in Idundun v. Okumagba (1976) 9–10 SC 227. In that case, the Supreme Court identified five methods by which a claimant may establish title to land:

Idundun v.

Okumagba (1976) 9–10 SC 227 — Five Methods of Proving TitleThe Supreme Court, per Fatayi-Williams JSC, held that title to land in Nigeria may be proved by any of the following five methods:(1) By traditional evidence — that is, evidence of how the land was originally acquired by the claimant’s ancestors or predecessors in title, and the history of the land through successive generations to the claimant.

Traditional evidence typically involves the testimony of elderly members of the family or community who are conversant with the history of the land.(2) By production of documents of title — such as a deed of conveyance, a certificate of occupancy, a registered instrument, or a judgment of a court of competent jurisdiction.

The document must be genuine, properly executed, and sufficiently clear to identify the property and the interest claimed.(3) By acts of ownership — that is, evidence that the claimant has exercised acts of possession and ownership over the land, such as farming, building, leasing, or collecting rents, over a period sufficiently long and continuous to establish ownership.

Acts of ownership are particularly significant in cases where no documentary title exists.(4) By acts of long possession — which are similar to, but distinct from, acts of ownership.

Long possession raises a presumption of ownership in favour of the possessor.

The possession must be exclusive, continuous, and uninterrupted, and must be of such character as to indicate ownership rather than tenancy or licence.(5) By proof of possession of connected or adjacent land, in circumstances that make it probable that the claimant is also the owner of the land in dispute.

This method is the weakest of the five and is ordinarily used to supplement, rather than to substitute for, one of the other methods.

The significance of Idundun v. Okumagba for conveyancing practice lies in the hierarchy it establishes. A deed of conveyance (method 2) is the strongest evidence of title, for it is a formal instrument that has been executed, stamped, and registered. A purchaser who holds a registered deed of conveyance has, in the ordinary course, an unassailable title, subject only to the statutory exceptions (such as overriding interests, fraud, or non-compliance with the Land Use Act).

For the mortgage broker, the hierarchy has immediate practical application. When investigating a vendor’s title, the solicitor should first seek documentary evidence: the deed of conveyance, the certificate of occupancy, the survey plan, and the registration particulars. If the documentary evidence is complete and unbroken, the title is established. If there are gaps in the documentary chain — for example, because an intermediate transaction was not registered, or because the root of title predates the registration system — the solicitor must supplement the documentary evidence with traditional evidence, evidence of acts of ownership, or evidence of long possession.

The five methods are not mutually exclusive; a claimant may rely upon more than one method, and the courts will weigh the totality of the evidence. In Fasoro v. Beyioku (1988) 2 NWLR (Pt 76) 263, the Court of Appeal held that production of a valid deed of conveyance, coupled with evidence of long possession, constituted overwhelming proof of title. Conversely, in Oyadare v. Keji (2005) 7 NWLR (Pt 924) 276, the Court of Appeal declined to accept traditional evidence that was uncorroborated and internally contradictory.

The Idundun framework has been applied, refined, and reaffirmed in hundreds of subsequent decisions. It remains the starting point for every title investigation in Nigeria, and every mortgage broker, conveyancer, and lender should be intimately familiar with its five categories and the evidential burden that each places upon the claimant.

Practical Considerations for the Mortgage Broker

The foregoing discussion of the law of deeds has immediate practical consequences for the mortgage broker. The following paragraphs distil the key practical points that arise in the day-to-day handling of conveyancing transactions.

Due Diligence and Title Investigation

Before any conveyance or mortgage is executed, the broker must ensure that a thorough title investigation has been conducted. The investigation should include a search at the Lands Registry (to verify the chain of title and to check for encumbrances), a search at the office of the Surveyor-General (to verify the survey plan), and, where appropriate, a physical inspection of the property (to confirm that the property corresponds to the description in the deed and that no third party is in adverse possession).

The Idundun v. Okumagba framework should guide the investigation. Where the documentary title is complete and unbroken, the investigation may be relatively brief. Where there are gaps in the documentary chain, additional enquiries — including enquiries into the traditional history of the land, the acts of ownership exercised by the vendor, and the nature and duration of the vendor’s possession — will be necessary. The broker should work closely with the solicitor conducting the investigation and should not release funds until the solicitor has certified that the title is good and marketable.

Ensuring Compliance with Execution Requirements

The broker must be satisfied that every deed is executed in compliance with the applicable statute. In a CA 1881 jurisdiction, the deed must be signed, sealed, and delivered; in a PCL 1959 jurisdiction, the deed must be signed and attested (with sealing deemed). Where the executing party is illiterate, the illiteracy jurat must be included. Where the executing party is a corporation, the deed must be executed in accordance with the corporation’s constitutional documents and with CAMA 2020.

Governor’s Consent as a Non-Negotiable Condition

Following Savannah Bank v. Ajilo, no mortgage broker should treat Governor’s consent as an optional or deferrable requirement. Consent must be obtained and endorsed upon the deed before funds are released. The broker should build the consent timeline into the transaction schedule and should allow at least sixty to ninety days for processing, depending upon the state. Where the transaction involves land in a state with a slow consent process, the broker should consider whether an escrow arrangement is appropriate to protect the lender’s position pending the grant of consent.

Stamping and Registration Timelines

Stamping must be completed within thirty days of execution; registration should follow as soon as practicable after stamping and consent. The broker should maintain a checklist of perfection milestones and should monitor progress at each stage. Delays in stamping attract penalties; delays in registration expose the grantee to the risk of losing priority. The broker who treats perfection as a ministerial afterthought, rather than as an integral part of the transaction, does so at the lender’s peril.

KEY TAKEAWAYS✓ A deed of conveyance must be signed, sealed, delivered, and attested.

Failure to observe any of these formalities may render the instrument ineffective as a deed.✓ The formal parts of a deed comprise introductory parts (date, parties, recitals), operative parts (testatum, habendum, reddendum), miscellaneous parts (covenants, provisos, parcels), and concluding parts (testimonium, attestation).✓ Governor’s consent under section 22 of the Land Use Act is mandatory.

Per Savannah Bank v.

Ajilo (1989), a deed executed without consent is void ab initio.✓ Engrossment must be clean and free from alterations.

Unexplained alterations after execution are presumed fraudulent and may render the deed void.✓ Perfection comprises stamping (within 30 days), Governor’s consent, and registration at the Lands Registry.

Each step is essential.✓ The Conveyancing Act 1881 requires a physical seal; the PCL 1959 deems a signed and attested deed to be sealed.✓ Lagos, the FCT, and states with digitised registries offer streamlined processes; manual registries demand greater diligence and longer timelines.✓ Idundun v.

Okumagba (1976) establishes five methods of proving title: traditional evidence, documents of title, acts of ownership, long possession, and possession of adjacent land.

Knowledge Check (10 Questions)

1. Which of the following is NOT one of the four essential elements of a valid deed?

   1. Signing
   2. Consideration
   3. Sealing
   4. Delivery

2. Under the Property and Conveyancing Law 1959, what is the effect of section 67?

   1. It abolishes the requirement of attestation
   2. It deems a signed and attested deed to be sealed
   3. It requires two witnesses for every deed
   4. It dispenses with the requirement of delivery

3. In Savannah Bank v. Ajilo (1989), the Supreme Court held that a mortgage without Governor’s consent is:

   1. Voidable at the option of the mortgagor
   2. Valid but unenforceable
   3. Void ab initio
   4. Enforceable upon subsequent consent

4. The testatum clause in a deed of conveyance serves to:

   1. Describe the property conveyed
   2. Introduce the signatures of the parties
   3. Effect the transfer of the estate
   4. Reserve a rent to the grantor

5. The habendum clause commences with which of the following formulae?

   1. Now this deed witnesseth
   2. In witness whereof
   3. To have and to hold
   4. Yielding and paying therefor

6. Within how many days of execution must a deed of conveyance be stamped?

   1. 14 days
   2. 21 days
   3. 30 days
   4. 60 days

7. Which of the following is NOT one of the five methods of proving title established in Idundun v. Okumagba (1976)?

   1. Traditional evidence
   2. Production of documents of title
   3. Payment of purchase price
   4. Acts of long possession

8. Under the Conveyancing Act 1881, which of the following is required for a valid deed?

   1. Two attesting witnesses
   2. A physical seal
   3. An illiteracy jurat
   4. Registration before delivery

9. An unexplained material alteration on the face of an executed deed is presumed to have been made:

   1. Before execution and with consent
   2. After execution and without authority
   3. By the Lands Registry
   4. By the attesting witness

10. In the Federal Capital Territory, Governor’s consent for land transactions is exercised by:

    1. The Governor of Nasarawa State
    2. The Chief Justice of Nigeria
    3. The Minister of the FCT through AGIS
    4. The National Assembly

Answers

Answers: 1. (b) 2. (b) 3. (c) 4. (c) 5. (c) 6. (c) 7. (c) 8. (b) 9. (b) 10. (c)

References and Further Reading

Land Use Act 1978, sections 1, 5, 22, 26, 28

Conveyancing Act 1881, sections 7, 44, 51, 56, 73

Property and Conveyancing Law 1959 (Cap P130, Laws of Western Nigeria), sections 61, 62, 67, 74, 76, 77

Stamp Duties Act (Cap S8, Laws of the Federation of Nigeria 2004)

Companies and Allied Matters Act 2020, section 101

Land Registration Act (Cap L3, Laws of the Federation of Nigeria 2004)

Land Instruments Registration Law (Cap 56, Laws of Western Nigeria)

Registration of Titles Law (Cap 181, Laws of Lagos State)

Lagos State Land Registration Law 2015

Savannah Bank of Nigeria Ltd v. Ajilo (1989) 1 NWLR (Pt 97) 305 (Supreme Court)

Idundun v. Okumagba (1976) 9–10 SC 227 (Supreme Court)

Oshodi v. Balogun (1936) 4 WACA 1 (West African Court of Appeal)

Piaro v. Tenalo (1976) 12 SC 31 (Supreme Court)

Stanbic IBTC Bank Plc v. Longterm Global Capital Ltd (2012) LPELR-19815 (CA)

Fasoro v. Beyioku (1988) 2 NWLR (Pt 76) 263 (Court of Appeal)

Oyadare v. Keji (2005) 7 NWLR (Pt 924) 276 (Court of Appeal)

Ajayi v. Adebiyi (2012) 11 NWLR (Pt 1311) 357 (Court of Appeal)

I.O. Smith, Practical Approach to Law of Real Property in Nigeria (2nd edn, Ecowatch Publications 2007)

A.G. Karibi-Whyte, The Relevance of the Judiciary in the Determination of Proprietary Rights (2003)

Niki Tobi, Nigerian Land Law (Lagos University Press 1992)

Nigerian Bar Association, Conveyancing Practice Handbook (Lagos Branch 2019)

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