DEED OF PARTITION
A valid question that may arise from the legal implications of joint ownership is when the joint owners decide to severe their interest in the property? The answer is Positive. Joint owners may apply to the court to partition the property where there has been a persistent refusal by one or more joint owners to allow the other co-owners to enjoy their rights in the property or all joint owners can unanimously agree to partition the property. A partition is an act that can be by an order of a court or otherwise by which property is divided into separate portions representing the proportional interest of owners in the property. The Purpose of partition is to eliminate the concurrent interest held by joint owners in the property, so in this case, each joint owner can enjoy and possess the property in severalty. Each divided property gets a new title and each sharer gives up his interest in the property in favour of other sharers. The transferee can now deal with his share of the property in any manner, he may decide to sell, lease as the absolute owner.
In the case of YESUFU V. ADAMA (2002) LPELR-CA/L/400/97, it was held that what amounts to a valid partition of land is a matter of fact, which must be established by credible evidence; all joint owners of family land held under native law and custom must participate in the voluntary partition of the property. Any deed creating such partition, if not executed by all joint owners is not voidable, but void. It was also held that partition can be effected orally under the native law and custom, and it could be by deed.
Joint owners can secure the service of a lawyer to draft the deed of partition. Once that is done, it must be duly registered at the Lands Registry. Registration gives it validity and makes it tenable in the court of law.
It is very important for any person who wishes to purchase land or landed property to investigate the title of the vendor. If the vendor is a joint owner of such property, the purchaser must conduct due diligence and ensure that other joint owners have approved the sale.
Contents of Deed of Partition
- The Introductory Part: This part contains the nature of the transaction, the name of parties, the date and the recital. The parties to the deed must be legal persons and their names and addresses must be included. The recital section provides a statement of facts that constitute the background of the current transaction. In the case of Nitel v. Rockonoh properties limited (1995)2NWLR part 378, page 437, it was held that a recital explains the reasons for the transaction. A recital can be introductory or narrative.
- The Operative Part: The testatum is the statement commencing the operating part, usually with words like “Now this deed witnesseth”. The Parcel clause gives a description of the property and the harbendum clause defines the extent of ownership to be enjoyed by the owners after the partition. The operative part also contains how the land will be divided among the owners and it also includes the proportion each owner will take.
- The Concluding Part: This part contains the testimonium, attestation and execution clause. Attestation means the witnessing of the execution of the deed, a testimonium shows all the parties executing the deed. The execution means signing of the deed by parties and witnesses to the partition.
For illiterates, the illiterate jurat must be included in line with the illiterate Protection Act. The content of the document must be read and interpreted to him and when he appears perfectly to have understood it then he will affix his thumbprint. It must also be endorsed by the person who read it to the illiterate person.
The deed of the partition must also be endorsed or franked by the lawyer who prepares it. Rule 10 of the Rules of Professional Conduct 2007 provides that “A lawyer acting in his capacity as a legal practitioner shall not sign or file a legal document unless there is affixed on any such document a seal and a stamp approved by the Nigerian Bar Association”. His name, address, seal and stamp must be on the deed.
Lastly, a deed of partition ensures a legal division of property that is jointly held thus creating new owners. After partition, the deed must be perfected with the land registry to register the interest of new owners in the property.