An Examination of the Legal Framework for Parties’ Rights when Mortgaging Land under Nigerian Property Legislation

Abstract

The conveyancing of rights in Nigeria is complex because of the multiple land tenure systems, which exist under the uniform principles of the Land Use Act 1978. Parties to a conveyancing matter have certain rights and duties to fulfil in creating an enforceable mortgage deed. These include certainty of title, insurance, leasing, custody of title deeds, consolidation of mortgages and possession. These are the preliminary covenants that a mortgage deed must consider. This article looks at the construction of the mortgage deed on land in Nigeria, discusses parties’ rights and obligations, and assesses the legal and judicial attitudes to them in determining parties’ rights and obligations. The doctrinal approach was adopted, using primary and secondary sources. Statutes and case law were analysed as primary sources, and textbooks, journal articles, and conference proceedings were analysed as secondary sources. Parties’ rights and obligations, both at common law and in statutes apply to the mortgaging of land in Nigeria. Also, compliance with these rights and obligations is necessary to enforce mortgages through the various methods recognised in Nigerian law. The seamless enforcement of the mortgage deed is crucial for using land for productive purposes and generating capital. The parties’ solicitors should ensure that clauses are included in the mortgage deed to protect the parties and to avoid costly litigation. The consent clause and the definition of a holder in the Land Use Act 1978 should be amended.