7.1.1 Definition and Nature of a Deed

A deed is a written instrument, signed and delivered, by which a legal right is created, transferred, confirmed, or extinguished. Under English common law (inherited by Nigerian property law), a deed required a seal and did not require consideration.

Under Section 73 of the Property and Conveyancing Law (PCL) of Lagos State, an instrument signed by the maker and attested by a witness is treated as a deed even without a seal, provided it is described as a deed.

A contract for sale of land creates an equitable interest. Only the deed (deed of assignment or conveyance) vests the legal estate in the purchaser.

7.1.2 Required Elements of a Valid Deed

• Writing — required by Section 4 of the PCL (Lagos)
• Parties — Assignor/Assignee (assignment), Mortgagor/Mortgagee (mortgage), with full names, addresses, RC numbers for corporates
• Recitals — paragraphs beginning “WHEREAS” tracing chain of title
• Operative Words — “assigns,” “conveys,” “demises,” “grants”
• Parcels Clause — describes property with survey plan number, boundaries, area
• Habendum — defines the estate/interest being granted
• Testimonium — closing formula: “IN WITNESS WHEREOF…”
• Execution — signing (Section 74(2) PCL Lagos)
• Attestation — witnessing (at least one, usually two)

7.1.3 Types of Deeds in Nigerian Property Law

7.2.1 Execution by Individuals

Requirements: signature in designated space; sealing (largely formal under PCL Lagos); delivery — Idundun v. Okumagba [1976] 9-10 SC 227 affirmed delivery is the final act giving operative force; attestation by witness (legal practitioner/Commissioner for Oaths for registry purposes).

7.2.2 Execution by Illiterate Persons

The Illiterates Protection Act (Cap I8, LFN 2004) requires the document to be read over and explained to the illiterate person, with a jurat clause certifying compliance. Thumb impression typical (right thumb male/left thumb female). Okonkwo v. Okagbue [1994] 9 NWLR (Pt. 368) 301 — defective jurat renders the deed liable to be set aside.

7.2.3 Execution by Corporations

Under CAMA 2020, a company may execute a deed by: (1) affixing common seal per articles of association (Section 98 — common seal no longer compulsory); OR (2) signing by two directors, or one director plus company secretary.

Behind any corporate deed should sit a board resolution authorising the transaction. Royal Exchange Assurance v. Aswani Textile Industries Ltd [1991] 7 NWLR (Pt. 201) 1 — acts through officers must be within authority conferred by the board.

Due diligence checklist: CAC registration confirmation, current CAC status report, identity verification of signing officers, board resolution review, memorandum and articles for property dealing restrictions.

7.2.4 Execution Under Power of Attorney

When an attorney signs on behalf of a principal: “Signed, sealed, and delivered by [Attorney] as attorney for and on behalf of [Principal] pursuant to a Power of Attorney dated [date] and registered as [details].”

7.3.1 Definition and Nature

A Power of Attorney (POA) authorises one person (donor/principal) to appoint another (donee/attorney) to act on their behalf. A POA is NOT a transfer of title. Ogunbambi v. Abowaba [1951] 13 WACA 222 — a POA does not pass any estate or interest in land.

7.3.2 Types of Power of Attorney

General POA — broad authority across many matters.

Special POA — limits authority to particular acts; safer for both parties.

Irrevocable POA — Section 9 of the Powers of Attorney Act (Cap P20, LFN 2004) — when coupled with a proprietary interest of the donee, cannot be revoked even by donor’s death/incapacity. Used in mortgage transactions as additional security.

Lasting POA — designed to continue after donor loses mental capacity; less developed in Nigerian statute than in English Mental Capacity Act 2005.

7.3.3 Requirements for Validity

• In writing
• Signed by donor (Illiterates Protection Act applies if illiterate)
• Attested by at least one witness
• May need registration (AGIS in Abuja; Lands Registry in Lagos advisable)
• Stamping under Stamp Duties Act within 30 days
• POAs executed outside Nigeria — notarised by Notary Public, sometimes authenticated by Nigerian embassy or apostilled (Hague Convention)

7.3.4 Power of Attorney and Mortgage Transactions

Risks:
– Stale powers — POA over 12 months old needs fresh confirmation of donor’s status
– Forged powers — Ekpenyong v. Nyong [1975] 2 SC 71 — forged POA is a nullity
– Revoked powers — no central register of revocations in Nigeria
– POA as security instrument — Some lenders take irrevocable POA in addition to mortgage; Savannah Bank v. Ajilo [1989] 1 NWLR (Pt. 97) 305 — mortgagee exercising power of sale must act in good faith

7.4.1 Minors (Persons Under 21)

Under PCL (Lagos) and equivalent state laws, the age at which a person can hold a legal estate in land is 21 (not 18). If land is conveyed to a minor, the conveyance operates as a declaration of trust. A minor cannot grant a valid mortgage.

7.4.2 Persons of Unsound Mind

A deed executed by a person of unsound mind may be set aside if the other party knew (or ought to have known) of the incapacity. Where a court has appointed a committee of the estate, the committee may sell/lease/mortgage but only with court authorisation.

7.4.3 Corporations and Artificial Persons

The ultra vires doctrine has been substantially relaxed under CAMA 2020 Section 43 — a company has unlimited capacity unless its constitutive documents say otherwise. Section 45 protects third parties dealing with the company in good faith.

For older companies (Companies Act 1968 or earlier CAMA), the objects clause may still impose limits. Review the memorandum of association.

7.4.4 Trustees and Personal Representatives

Trustees governed by Trustee Act (Cap T22, LFN 2004) and state laws. Personal representatives by Administration of Estates Law (Lagos/Western Nigeria). Need certified copy of trust deed/will, grant of probate or letters of administration, and legal opinion on authority.

7.4.5 Eligibility of Foreigners

Foreign nationals face restrictions. State governors rarely grant statutory rights of occupancy directly to foreigners. The Nigerian Investment Promotion Commission Act requires foreign investors to register a Nigerian company (with at least one Nigerian co-member) and acquire property through the corporate vehicle.

A deed is a written instrument, signed and delivered, that creates/transfers/confirms/extinguishes interests in property. Validity requires writing, identified parties, recitals, operative words, parcels clause, habendum, testimonium, proper execution, and attestation. Special rules apply to illiterate persons (jurat), corporations (board resolution + CAMA 2020), and attorneys (POA terms). Legal capacity restrictions affect minors (under 21), persons of unsound mind, corporations (older CAMA), trustees, and foreigners.

1. Identify and explain at least six required elements of a valid deed under Nigerian law.
2. A property in your lending pipeline was sold by an illiterate vendor five years ago. The deed in the chain of title has no jurat clause. What are the legal implications?
3. Describe the different types of Power of Attorney recognised in Nigerian law.
4. Explain why a minor under 21 cannot grant a valid mortgage over property in Nigeria.
5. A corporate borrower presents a deed of mortgage. What due diligence steps confirm capacity and authority?