Deed of Assignment as a Means of Transfer of Real Property in Nigeria, Issues, Challenges and Prospects

Deed of Assignment as a Means of Transfer of Real Property in Nigeria, Issues, Challenges and Prospects

Chapter One

Objectives of the Study

This study on deed of assignment as a means of transfer of real property in Nigeria issues challenges and prospects shall have the following objectives:-

To broaden the understanding of property buyers and owners on the need to pay close attention to the details of the contents of the deed of assignment on the property they own (possess) or purchase with the view of minimizing litigation
To identify the various means of acquiring real property in Nigeria
To discuss the nature of the deed of assignment with the consideration of the important features (of the deed of assignment).
To examine the issues and challenges in the perfection of the deed of assignment
To offer recommendations that can guarantee the security of titles or property
To add to the available literature in the area of real property law transactions in Nigeria, particularly on deeds of assignment.

CHAPTER TWO

MODERN MEANS OF ACQUIRING REAL PROPERTY IN NIGERIA

Introduction

Transaction in land and interest in land are a major sector of the Nigeria economy. Many Nigerians desire to own properties to meet the need for shelter, as mans of investment are as symbol of status. Government over the years has also, through various policies and legislation, encourage Nigerians to own properties. Legal practitioners in Nigerian are major players in the process of land transfers – they advise on the legal requirements, prepare the instruments conveying land and register them. More so, there are various ways by which persons can acquire real properties in Nigeria. And “real property” herein refers to land. This research work deals with property transactions as applicable to tangible property or real property, particularly the use of deed of assignments as a means of acquisition of real property.

What is Real Property?

The term “property” had myriad of meanings, but it is generally regarded as an aggregate of rights belonging to a person which is guaranteed and protected¹. The word is commonly used to denote everything which is in subject of ownership, corporeal and incorporeal, tangible and intangible, visible or invisible, real or personal². Property may mean the right of a person to something tangible and physical such as a parcel of land. It may also relate to something intangible such as a right in a work protected by copyright. This view finds support in Section 2 (i) of Conveyancing Act 1881. The aforesaid provision defines “property” (unless contrary intention appeared in the legislation) to include real and personal property, any estate or interest in any property, real or personal, any debt, anything in action and any other right or interest.

From the foregoing, it thus means that real property is land, anything attached to land or any interest in land. Land is depicted to mean and include land of any tenure, tenements, hereditaments corporeal and incorporeal and houses and other buildings and also undivided share in land³. Land includes building and any other thing attached to the earth or permanently fastened to anything so attached, though it does not include minerals.

State Grant-Right of Occupancy

State grant is one of the means of acquiring property in Nigeria and it is governed by the Land Use Act promulgated in 1978 by the then Military Government of Nigeria. It was intended to make lands available for the benefit of the citizens. The Act made all lands within a state tenured; the Act also seeks to enhance the principle of leaseholds by which the land in each state is vested in the Governor of a state to hole in trust for the benefit of Nigerians within the state. The Governor of a state is a Trustee of all lands in that state all Nigerians are left with the equitable interest in the land and become the beneficial owners of the land subject to the provisions of the Act⁴.

CHAPTER THREE

NATURE OF DEED OF ASSIGNMENT

Introduction

Widely speaking, a deed is a document which posses itself in property or which binds a person to perform or abstain from doing some action. It furnishes evidence or information about something.¹ Deed is a major instrument used in real property transaction in Nigeria. This is so because the conveyance of legal interest in land is affected by use of deeds. Examples are deed of lease, deed of gift, deed of legal assignment². A deed of release of mortgage may be used to discharge a legal mortgage created by deed.

A deed is very essential in transfer or creation of a legal estate. The exception to this rule includes assent by personal representatives, a lease for three years in compliance with Section 79(2) of Property and Conveyancing Law 1959. A deed is also necessary if an action is a promise unsupported by consideration or a power of attorney, vesting power on attorney to execute the deed.

CHAPTER FOUR

ISSUES AND CHALLENGES IN PROTECTION OF DEED OF ASSIGNMENT

Introduction

The last stage in the process of transfer of interest in land is the completion stage. Under the completion stage, matters to be dealt with include application for Governor‟s consent¹, payment of stamp duties and registration of the conveyance. Without these, title to land can not be validly passed to the purchaser. Failure to meet up with these requirements have grave consequences.

CHAPTER FIVE

SUMMARY AND CONCLUSION

Summary of Findings

The major findings in this research are as follows:-

We have been able to establish that there are various means of acquiring real property in Nigeria which include, state grant, gift, inheritance, purchase and allotment of family We could examine that of all these means of acquiring land, only gift and assignment (purchase) must be by deed. This lead to the answering of the question – what constitute a valid conveyance?
We have also been able to establish that in conveyancing, particularly as it relates to the transfer of land and landed property interest, it could be effected under native law and custom without the need for a Deed of Assignment. This results in the serious hitches in the desire and ability to guarantee the security of titles to land in Nigeria and the escalating

The course of this research revealed that the nature of conveyancing practice in Nigeria is bedeviled and clouded with multiplicity of applicable laws such as the Conveyancing Act 1881, Property and Conveyancing Law 1959, Land Use Act 1978, Stamp Duty Act2007, Registration of Titles Law 2004, Land Instrument Registration Law of Kaduna State, Abia State Law of Property, Capital Gains Tax Act, This greatly causes the unnecessary bureaucracy and difficulty in effecting conveyance of interest in land.

That it is unnecessary to obtain Governor‟s consent for transfer of interest in land. It has become difficult, cumbersome and fund consuming in accordance with the provision of the Land Use Act and other applicable The process of obtaining Governor‟s consent amounts to 68% on the average of the total time it takes to register title in Nigeria.

That the cost of registering property in Nigeria is between 15% to 20/% of the cost of land, representing an excessive cost compared to other countries where registration of title is far less expensive or even free.
The Certificate of Occupancy (arising from acquisition of real property) does not confer title and presumes that such a title A careful perusal and deduction from the Lands Use Act does not show any conclusive means of proving one‟s entitlement to a right of occupancy. That is a grave defect legislatively and otherwise.
Inadequate manpower in the field of conveyancing practice in Nigeria adds to the challenges in the art of covneyancing. It is glaring that few Nigerian lawyers are in the field of conveyancing practice. This allows the influx of quacks into the system, you find touts hanging around Land Registries offering cheap services for
Shortage of awareness of the conveyancing practice amongst the citizenry. Except there exist a problem relating to real property where someone is involved, most Nigerians do not know the legal procedure for acquiring real property especially as it relates to deed of Most people rely on contract of sale of land agreement as an evidence of acquisition of title or interest in land; not knowing that it is a mere preparatory stage to the real assignment.

Conclusion

This research has attempted an examination of the means of acquiring real property in Nigeria. It has shown that property or interest in land can be acquired through state grant, gift, purchase, inheritance and allotment of family land. But it is evident from the operation of the Lands Use Act that assignment or alienation of interest in land must have Governor‟s consent to be valid¹ or that consent of the Local Government Authority in the territorial jurisdiction must be sought and obtained.² We humbly submit that in view of the challenges pose by this requirement of Governor‟s consent, it is practically unjustified and unnecessary.

Some of the provisions of the Land Use Act³ are a clog in the wheel of development in Nigeria as pertains real property transactions. The ownership of land has been vested in the Governor who holds same in “trust” threatens economic development. People cannot easily carry out a valid sale and assign the interest in the same property within a desired and short time.

From plethora of judicial authorities, customary means of acquiring property and state grant are evidences of ownership of land. The problem created here is that, there are various laws especially the Land Use Act which expressively requires Governor‟s consent for alienation of land. It is disturbing that holders of statutory rights of occupancy are at the mercy of the Governor since a deed of assignment registered at the Land Registry is superior. Be that as it may, we humbly submit that state grant should rank pari passu with deed of assignment that the same Act would not create obscurity.

The Deed of Assignment spells out the key issues in the transaction between the seller and the buyer so that there would not be any confusion or assumption after the property had been transferred to the new owner. When deed of assignment has been exchanged between parties, there is need for registration. The procedure requires payment of stamp duties, obtaining of Governor‟s consent and registration. It is this procedure governed by various laws that guarantees a valid assignment.

Recommendations

From the findings, we proffer the following recommendations:-

In view of the problems associated with the transfer of title under Customary Law, the transfer of interest in land under any means should be synchronized under one system of conveyancing, that is, Deed of Assignment.
In view of the multiplicity and variation of different legislations on conveyancing in Nigeria which makes it different from State to State, should be harmonized and made uniform in all the States of the Federation. This will create certainty as to what may be attained if a citizen from one State wishes to acquire property in another State as guaranteed under Section 42 of the 1999 Constitution of Nigeria (as amended).
Processing time for Governor‟s consent where it must be sought and obtained should not exceed 15 days and the cost of transferring property should not exceed 5% of property
The power to arbitrarily increase fees payable to State should be checked seriously so that the State not unreasonably exploit title holders. For instance, Kaduna State Government increased fees payable to Ministry of Lands, Survey and Country Planning in 2012. In January 2014, the Ministry increased the fees to 100% for registration. Initially it was 5% to 5%, though it was reduced to 3%, and if the property is State owned, you pay the same amount you paid for registration and stamping. Also the consent form before January, 2012 was Five thousand Naira (N5,000). It was increased to Thirty thousand Naira (N30,000), but it is not less than Ten thousand Naira (N10,000).
In view of the time spent in obtaining Governor‟s consent, we recommend that once payment is made at the Stamp Duties Office, the conveyancee should go ahead and register the deed having produced evidence of payment of necessary
Shortage of manpower in the field of conveyancing can be reduced by training and retraining of lawyers in the Effort should be made in curbing quacks from engaging in the field of conveyancing. If they are allowed, some may even go ahead preparing documents for conveyancing which is against the Legal Practitioner‟s Act 2007.
It is also recommended that property owners should contact their lawyers that may know and take the best alternative to effecting transaction on their

References

Dadem Y.Y , op. cit p. 70-74; Section 84 Evidence Act.
Oluyede P.A.O., op. cit
Adubi, E.O., Drafting Conveyances and Wills, Light House, Pub. Co. Ltd., Lagos (1995).
Section 21 Land Instruments Registration Law of Kaduna State.
World Bank Doing Business, www.doing business/data/explore countries/Nig./ registering property 2011.
¹UBA Plc v. Jimmy King (Nig.) Ltd. All FWLR part 429, p 56; Ajilo v. Savvannah Bank (1989) 1 NWLR pt 97, 305

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