IS YOUR DEED TRULY DELIVERED?

By Layi Babatunde, Esq.

The case of Anambra State Housing Development Corporation v. J.C.O Emekwue (1996) 1 NWLR (Pt. 426)505 S.C decided by the Supreme Court on Tuesday, 16th January, 1996 brings out clearly the kind of assumptions or omissions in property transactions that may turn out to be very expensive on the long run.

The facts of the case put briefly are as follows:

The Housing Corporation, at the behest of the buyer offered to sell a purpose built house, within a housing estate at Onitsha to the buyer. The house was a 99 years leasehold interest,  offered for sale among other terms, at N40,000.00 payable in four equal monthly installment. All payments were to be liquidated within Six months of the acceptance of the offer. Or payment of 50% of the selling price, documents of title were to be prepared by the housing authority, at the cost of the buyer. The letter conveying the allocation by the Housing Authority to the buyer among other terms, stated thus:

“If after 30 days from the date of allocation, you have not paid the second installment, we will have no other alternative than to cancel your allocation and offer the … plot to other prospective purchasers on the waiting list…. The keys of the house will be handed over to you only when you have paid the full purchase price of the house.”

Indeed 50% payment was effected by the buyer and a Deed of Assignment was finally executed and Registered in favor of the buyer.

For reasons which turned out to be unacceptable to the Housing Authority, the buyer delayed in effecting the payment of balance of N20,000.00 as agreed, whereby the Housing Authority revoked its earlier allocation to the buyer, inspite of the fact that a Deed of sub-lease had been executed and Registered between the Housing Authority and the buyer. The Housing Authority also refunded the sum previously paid by the buyer.

When the buyer held on to the executed and registered deed as if the property had been vested in him by its Registration, inspite of his default in meeting the terms of the original offer, the Housing Authority went to Court to have the Registered Deed set aside.

In a nutshell, the position of the Housing Authority was that the property was never at any time formally transferred to the buyer, inspite of the execution and Registration of the Deed. That beyond the signing and sealing of the Deed of Assignment, the same was never delivered to the buyer inspite of the fact that, upon execution and sealing, it was the Housing Authority who invited the buyer to come and collect his Title Deeds.  But does the buyer collecting “his Title Deeds” amount to delivery thereof?

Both at’ the High Court and the Court of Appeal it was held, that the parties having duly executed a Deed of Assignment, the housing authority had divested itself of ownership rights in the property in favor of the buyer and that the property could not be re-allocated.  Any re-allocation was void. It was their considered view that the only op\ion open to the housing authority, was to claim for the unpaid balance.

However at the Supreme Court, the default by the buyer in paying up the balance within time and his further acceptance of the refund made to him by the Housing Authority, appeared to have weighed heavily against the buyer, whereby the court came to the inevitable conclusion that the execution of the Deed of Assignment or sub-lease, is no reason for the buyer to assume that he was entitled to have the property, having failed to meet the other conditions. The Apex Court held that though the Deeds were signed and sealed, they were never delivered, and that non-delivery was due to failure of the buyer to fulfill the fundamental condition of paying the full price for the property and within the time stipulated.

The big lesson in this judgment therefore, is that anyone who goes to sleep having executed a Deed, expressed to have been “SIGNED SEALED AND DELIVERED” !but without fulfilling the conditions of such delivery, does so at his own peril. Such a. person, will sooner or later discover, that nothing was indeed delivered by the executed Deed, its subsequent registration notwithstanding.

Extract taken from

HINTS ON LAND DOCUMENTATION AND LITIGATION IN NIGERIA

(Published by LAWBREED LIMITED)

First published in July, 1999

Click HERE to get a copy

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