The word property has a variety of meanings depending on the context in which it is used. Sometimes, it may mean ownership or title such as when it is said that property in the goods passes to the buyer immediately the contract of sale is concluded whether or not the goods have been physically transferred to him. It may mean the ‘res’ (thing) over which ownership may be exercised. It may also mean an interest in a thing less than ownership but nevertheless conferring certain rights such as when it is said that ‘B’ as pledge has ‘special property’ in the subject matter of the security. – Donald v. Suckling (1866) LR 1QB p. 585.

In whichever sense the word property is used, property law is designed to regulate the relation of persons to things thereby providing a secure foundation for the acquisition, enjoyment and disposal of things or wealth.
Property may also 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(1) of the Conveyancing Act 1881 which defines “property”, to include real and personal property, any estate or interest in any property, real or personal, any debt, anything in action, any other right or interest. Land is depicted to include land of any tenure, tenements, hereditaments, corporeal or incorporeal and houses and other buildings, also an undivided share in land – Section 2 of the CA.

Conveyance is the application of the law of Real Property in practice. It is not often easy to differentiate between real property law and its practice, for while the former is static, the latter is dynamic. Real property law deals with the rights and liabilities of landowners, while its practice (conveyancing) deals with the art of creating and transferring rights in land. Yet, one cannot be a good conveyance without a good grasp of real property law. Conveyancing transactions may occur in a number of situations such as sales of land, leases, and mortgages. Conveyances are described as including “assignment, appointment, lease, settlement and other assurance and convenant to surrender, made by deed, on a sale, mortgage, demise, or settlement of any property, or any other dealing with of for any property”. However, a Will is an exception to a conveyance – Section 2(1) of the PCL, 1959 because it is ambulatory (movable), which “…distinguishes a will from a conveyance…,” the latter being “inter vivos, which operates at once or at some fixed time.”

APPLICABLE LAWS

These are thus:
1) Customary Law;
2) Case Law;
3) Received English Law; and
4) Nigerian Legislation

CUSTOMARY LAW

This is a set of rules of conduct applying to persons and things in a particular locality, which exist at the relevant and material time and is recognized and adhered to by the inhabitants of the community as binding on them. Custom is usually a question of fact which is required to be pleaded and proved by witnesses in any legal proceeding – Olubodun v. Lawal (2008) All FWLR (Pt. 438) p. 1468; Odutola v. Sanya (2008) All FWLR (Pt. 400) p. 780.
These rules and customs vary from one society to another. The simple requirements of payment of the purchase price; the presence of witnesses; and allowing the vendor into possession, are sufficient elements for sale under native law and custom in Nigeria. Once these 3 elements exist, a valid sale could be said to have taken place – Adesanya v. Aderonmu (2000) FWLR (Pt. 15) p. 2492. However, the provisions of the CA and PCL do not regulate customary transactions of land – olubodun v. Lawal (supra) where the SC held that the trial court erred in admitting such a document (a letter written by their ancestors tendered by the plaintiff) in evidence.

CASE LAW

These are decisions of the courts and opinions expressed by jurists in respect of disputes over real property that may be brought by contending parties before and decided by the courts. Some of these courts exercise original jurisdiction in respect of certain subject matters of land. The jurisdiction of the High Court also covers land matters that are the subject of customary right of occupancy or those in non-urban areas – Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) p. 1349; Odetola v. Bamidele (2007) All FWLR (Pt. 387) p. 841.

In some States, appeals over land matters decided by the Area or Customary Courts may be dealt with on appeal by the High Court. However, customary arbitrations are accepted by higher courts as binding on the parties to the arbitration but decisions at customary arbitration is not considered as a means of proving title to land in Nigeria, although it may aid in establishing the traditional history of root of title base on the custom of the people – Nruama v. Ebuzoeme (2007) All FWLR p. 347 at 740.

Appeals may lie from the decision of a lower court to a higher court. As a result of the common law principle of stare decisis, the judgment and opinions expressed by a superior court binds a lower court and the latter must follow such decision so long as the facts of the cases are similar.

RECEIVED ENGLISH LAW

This is the law received from England comprising of the principles of common law, doctrines of equity and statutes of general application. These principles apply to regulate property practice in Nigeria, particularly over disputes that are tried before the High Courts and other superior courts. The statutes of general application are those enactments of the English parliament that were in existence in England as at January 1, 1900 the day in which the protectorates of Northern and Southern Nigeria were proclaimed e.g. Statute of fraud of fraud 1677, Conveyancing Act of 1881, and the Wills Act of 1837.
The English law applies to property transactions in Nigeria where there is no comparable local legislation or customary law that applies to such a transaction – Ude v. Nwara (1993) 2 NWLR (Pt. 278) p. 647.

NIGERIAN LEGISLATION

The various laws that have direct impact on property transactions that are intended to be discussed in the module are:

• The 1999 Constitution – The constitution affects property as regards to section 43 which provides for the right of every citizen to acquire and own immovable property anywhere in Nigeria. Section 44(1) also went further to enact the Common law principle that leans against the taking away of proprietary vested rights without specific legal authority and the provision of compensation. Section 44(2)(c)(d) went further to state that the power of compulsory acquisition does not affect any general law relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts; or relating to vesting and administration of property of persons adjudged or otherwise declared bankrupt nor insolvent, of persons of unsound mind or deceased persons, and of corporate or unincorporated bodies in the course of being wound-up. Finally, section 315(5)(d) of the Constitution provides for the sanctity of the Land Use Act.

• Land Use Act 1978 – An Act to Vest all Land compromised in the territory of each State (except land vested in the Federal government or its agencies) solely in the Governor of the State, who would hold such Land in trust for the people and would henceforth be responsible for allocation of land in all urban areas to individuals resident in the State and to organisations for residential, agriculture, commercial and other purposes while similar powers will with respect to non urban areas are conferred on Local Governments. Section 1 provides that the Governor of each state shall hold the land comprised in such State upon Trust and administer same for the use and common benefit of all Nigerians – Abioye v. Yakubu (1991) 5 NWLR (pt. 190) p. 130. What private individuals have on the land is a right of occupancy – Kachalla v. Banki (2006) All FWLR (Pt. 309) p. 1420. This is the greatest and highest legal interest a holder can have – Section 5(1); Ezennah v. Attah (2004) All FWLR (Pt. 202) p. 1858 at 1884. Section 4 preserves the application of the State Land Law except that they will continue to have effect with such modifications as would bring those Laws into conformity with the Act or its general intendment. Section 49 precludes the courts from questioning the Governor’s power to grant right of occupancy. Section 26 renders void any alienation of interest in land without consent.

• Property and Conveyancing Law (PCL) 1959 – This is enacted by Western region of Nigeria commonly referred to as PCL. The most important features of this law is that no sale of land shall be enforced except there is a note of memorandum in writing containing the terms of the sale and signed by the person to be charged – Section 67(1) of PCL; all conveyances of land or interests in land for the purposes of creating any legal estate are void unless they are made by deed – Section 77(1) and 78(1) of PCL; where a person executes a deed, he shall either sign or place his mark on it and sealing alone is not sufficient – Section 97(1) of PCL; and the right to create leases are safeguarded so long as certain elements exist in it – Section 79(2) of PCL.

• Conveyancing Acts (1881, 1882) – These are English Statute of General Application applicable to States of the old Eastern and Northern Nigeria and a part of Lagos. These statutes have been repealed and modernized in England and there is no justification for their being retained in our statute books in Nigeria – Ihekwoaba v. ACB and Ors (1998) 10 NWLR (Pt. 571) 590 at 626. However, States are advised to stop applying these English Statutes of General Application. In the case of Caribbean Trading Fidelity Corporation v. NNPC (2002) 14 NWLR (Pt. 786) page 133, Niki Tobi JCA (as he then was) held that “English is English, Nigeria is Nigeria… theirs are theirs, ours are ours… We cannot therefore continue to ‘enjoy this borrowing spree’ or merry frolic’ at the detriment of our legal system… After all, we are no more in slavery”.

• Stamp Duties Act/Law 2004 – There is a Stamp Duty Act for every State and FCT which provides for the procedure for stamping of documents. Duty on land within the control of the State is paid to State Internal Revenue Service. Stamping of documents should be within 30 days of the execution of the document though it may be stamped out of time, which will attract penalty.

• Illiterate Protection Laws (IPL) 1994 – This is a law made to protect illiterate persons involved in transactions generally. “It is like a very wide umbrella and covers all forms of writing or document written at the request of an illiterate person” – Lawal v. Ollivant (1972) 3 SC 124. Any person who shall write any letter or document, at the request on behalf or in the name of an illiterate person shall also write on such letter or other document his own name as the writer and his address – Section 2 of the IPL. The importance of these protection is for the benefit of the illiterate person – Fatumbi v. Olanloye (2004) All FWLR (Pt. 225) p. 150. Further, where the illiterate person is to sign or to make a mark, the document must be read over and explained to him. The object of this law is to protect an illiterate person from possible fraud

• Land Instrument Registration Laws (Lagos) – These laws require that the preparation of instruments and documents on sale or transfer of land can only be done by a Legal Practitioner

• Registration of Titles Law 2004 – This is under Cap. R4, Laws of Lagos State which requires titles to land to be registered as first or subsequent registrations. The principal purpose of this law is for the State to guarantee titles that have been investigated and registered by the Registrar of titles so that purchasers of land can rely on it in determining if the vendor has title to sell the property and the encumbrances that attach to the land.

• Wills Act (Amendment) Act, 1852 – This has been replaced in most states by the Wills Laws.

• Wills Laws of States (Lagos, Oyo, Abia, Kaduna, Jigawa) – The major aim of this law is that freedom to make Wills and dispose of estate by every person is guaranteed; the right of testation is sometimes restricted by imposing limitations on the maker of the Will in respect of the disposition of his estate; there are requirement for the validity of a Will; witnesses are required for making and revoking Wills; and there are provisions to ensure that a Will does not lapse as a result of the death of the beneficiaries.

• Administration of Estates Laws of States – This law regulates the administration of the estate of a deceased person who dies intestate or testate. The law substitutes local provision on intestate succession with English law on intestate.

• Companies and Allied Matters Act (CAMA) – The Act permits registered companies under the Act to mortgage their properties by the creation of debentures over the assets of the company. Section 166 of the Act states that a company may borrow money for the purpose of its business or objects and many mortgage or charge its undertaking, property and uncalled capital and issue debentures, debenture stocks and other securities for any debt, liability or obligation of the company. ‘Property’ in the section includes land or any interest in land which the company has.