Mr Wayo sold a plot of land to Alh Muniru, without disclosing to him that the land is subject to ‘lis pendens’; a latin maxim, which means pending law suit (this is the power of a court restricting the sale of any interest in land, while legal proceeding is pending). Mr True, a friend of Alh. Muniru witnessed this transaction.
Mr Wayo later sold the same plot of land to Kogberegbe. When Kogberegbe laid the foundation of the building, he invited Mr True to bless it. Upon his arrival he informed Kogberegbe that his friend, Alh Muniru, bought the same land from Mr Wayo.
Mr True took Kogberegbe to Alh Muniru house, both of them proceeded to sue him for breach of contract.
Meanwhile, none of the two purchasers of the land had contracted the service of a legal practitioner, but instead relied on the credibility of Mr Wayo’s words.
I am sure you are thinking what is the implication of this? Some would think Alh.Muniru should be the rightful owner of the land, because he bought it first, forgetting that the land is subjected to the doctrine of lis pendens.
Both parties cannot sustain the purchase, because the land is subject to a court litigation, the remedies that the court would likely grant them include the following:
- Recission: the court will set aside the contract and resolve the parties to the position they were before the contract. The order terminates the contract ab initio.
- Damages: this is a monetary compensation against Mr wayo
- Etc
From the scenario above, which is reflected in most land issues in Nigeria, people feel there is little or no need to seek legal advice, when buying property, and it is not surprising they fall victims due to their own ignorance.
A legal practitioner would make some preliminary inquiries on behalf of his client, (i.e the purchaser,) before proceeding to inform him to buy the land. Questions such as:
- Disputes over the land
- Boundaries of the property
- Notices in respect of the property
- Does the parties have the power to buy, convey or otherwise deal with the property
- Are the documents genuine and valid
- Whether there is a defect etc
He would also make relevant inquiries at
- The land registry: to determine any act of government acquisition of the property, any court judgment.
- Search at probate registry: this is where records of wills and testamentary documents are kept. This is to ascertain who can convey the title in the property.
- Court: to determine whether the sale is to be conducted by the court
- Traditional leaders, family heads etc.
- Corporate Affairs Commission.
There are three types of contract of sale
- Oral contract- it is generally unenforceable and prohibited, because it breaches section 4 of the Statute of Fraud, which requires that there must be a note in writing in respect of contract for the sale of land.
If a sale of land is conducted under native law and custom, the minimum requirements for such a contract are:
- The purchaser must have paid the purchase price
- Vacant possession of the property must have been delivered to the purchaser
- Witnesses must be present during the transaction
- Open contract- this type of contract is contained in a note with these basic requirements
- The agreement must contain the parties name
- The property must be sufficiently described. There must be no ambiguity
- The price must be fixed
- Formal contract: this is a standard contract that reduces all the details as regards the property into writing. It spells all the terms and conditions.
The following are contents of a formal contract, date of completion, deposit, capacity of the vendor, vacant possession, insurance, fixtures & fittings etc
Here are the advantages of formal contract:
- The purchaser has more time to investigate the title being transferred
- The death of either the party does not terminate the contract
- Parties cannot withdraw from the contract
- It is easier to enforce
It is advisable to always seek the service of a legal practitioner, when purchasing property.
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