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CRITICAL EXAMINATION ON CONTRACT FOR THE SALE OF LAND IN NIGERIA
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CHAPTER ONE
GENERAL INTRODUCTION
1.1 INTRODUCTION
A contract of sale of land is the first stage in a conveyancing transaction by which the purchase acquires equitable interest on the property and legal interest in acquired later at the completion stage. Unfortunately, this important stage in conveyancing is usually ignored by Nigerians.
The parties must have capacity; there must be an offer, an acceptance, a consideration an intention to enter into a legally binding relationship, in addition to the above, the special nature of the commodity on sale makes the sale of land to be regulated very closely by common law, the general principles of equity. Customary law, and statutes. Conveyancing is a generic property or interest in real property from one party to another.
Sale or contract for sale of land is a major part of property law practice in Nigeria. In the process, interest in land is transferred from a party to another, it is not just a mere agreement to purchase such land or the payment of price, but a complete procedure which has to be followed such as, the agreement to transfer interest in land, agreement and the payment of agreed price.
The Collens Gem English Dictionary defines contract as “The entering into agreement formal document recording agreement or agreement enforceable by law[1] ”.
In Nigeria there are two clear and distinct ways in which land is sold and title validly transferred following a sale.
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Through customary law or,
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Through received English law.
The two ways are distinct and mutually exclusive and it is important for a party claiming title to kind to show clearly, carefully, and fully the nature of the sale transaction in order to establish the applicable law to
the transaction[2] While a valid sale of land under customary law does not require a conveyance as
obtained under English law,[3] a valid transfer or sale under English law requires payment of the money or
consideration, acknowledgement of the money or consideration, acknowledgement of receipt of purchase
money and execution of deed of conveyance in favour of the purchaser [4]
APPLICABLE LAW
The principal statute on the formation of contract of sale of land is section 4 of the statute of frauds 1677 (U.K) and its local equivalent section 5 of the law Reform (contract) Act (No 64) of 1961.[5]
Section 4 of the act provides
No action shall be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action is brought or some memorandum or note thereof, is in writing and signed by the party to be charged or by some person thereunto by him lawfully authorized.
The act does not apply to a contract for sale of land under native law and custom. Under native law where the indigene are predominantly illiterate the requirement of writing is not essential in fact document are unknown to nature law.[6] But every valid sale of land under native law satisfy the following [7]
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The payment of the purchase price;
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The purchaser is put in possession and
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The transaction is in the presence of witnesses
In Alake v. Awawu8 the court held that:
“This court asked to lay down a strict rule of law that land the property of an illiterate native cannot be disposed of by him or her without complying with the statute of frauds. I am not prepared to do this the circumstances of each case must be taken into consideration.
1.2 STATEMENT OF PROBLEMS
The principles and Effect for selling land is what this study deals with the transfer of interest in land that has already been in existence for a long time, even before the introduction of General law (known as the English law). This aspect of contract has been abused, and misunderstood therefore this study seeks to throw light on such aspect. This study seeks to highlight the various problems in this area such as:
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The various stage in conveyancing transactions
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The need for pre contract enquiries
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The various means and places where titles to land could be investigated.
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The procedure for and effect of exchange of contract.
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The procedure for completion of sale of land and perfecting title to land
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Remedies and effects for breach of contract for sale of land.