The existence of recitals in a deed is determined by the word 'IS' used in the commencement - if it is - THIS DEED OF ASSIGNMENT IS, then a recital will be inserted. If it is - THIS DEED OF ASSIGNMENT made this ......, then there would not be recital. Recitals starts with the word WHEREAS, no matter the number of paragraphs. Recitals can be introductory or narrative.

A narrative recital usually comes before the introductory recital and it states the root of title in the property up till the person whom it is currently vested. That it, it narrates the history of how thee vendor came to own the property in question.

An introductory recital usually comes below the narrative recital and it explains the vendor’s intention to transfer the property to the purchaser and the purchaser’s intention to acquire the property from the vendor.

Functions of recitals

  • A clear recital can help clear ambiguity(s) in the main body of the document.
  • Section 162 Evidence Act provides that when there is recital of fact in a document that is 20 years old at the date of the contract, it will be taken to be sufficient proof of title. Thus the statements of facts in such a recital are presumed to be true and correct. This is the ancient document rule.
  • Statements of facts in a recital may give rise to estoppel against the person making them. See section 169 EA
  • It is a useful way to know the history of the property and how the vendor came to be vested with the property in question.

TYPES OF DEED

  • DEED POLL: unilateral deed; it involves only one party e.g power of attorney. Change of name can be by deed poll.

  • INDENTURE: it involves more than one person. In sale of family land, there is the head of family and principal members, all of the one part.

Cases when a deed is required

  • Transfer of interest in land e.g. Assignment- section 77(1) PCL
  • Power of Attorney to execute a deed – Abina v. Farhat;
  • A contract without consideration (deed of gift) – Anyaegbunam v. Osaka
  • When statute require that a deed be made
  • To revoke, vary, modify, amend or rectify a POA by deed. Abina v. Farhat
  • Confirming right or interest that has already passed
  • Vesting declaration
  • Voluntary surrender
  • Lease above THREE YEARS.
  • Legal mortgage
  • Share transfer agreement of a company

It is important to note that there are only two instances where a POWER OF ATTORNEY must be by deed. They are: where it authorizes an attorney to execute a deed and where it is to alter or modify a power of attorney granted by deed.

CASES WHERE DEED IS NOT NEEDED:

  • Assent by the personal representative
  • Tenancy - under three years
  • Wills
  • Ordinary power of attorney
  • Surrender by operation of the law
  • Disclaimer by executors
  • Receipts not required by law to be under seal, s. 135 PCL
  • Vesting orders of court; see Barclays Bank v. Ashiru
  • Transactions covered by the rule in Walsh v. Lonsdale
  • Conveyances taking effect by operation of law such as Appointment of trustees in bankruptcy, Admission of Will to probate, and granting of letters of administration

Particulars needed from parties in respect of deed of assignment

  • Particulars of the parties (names, address, status)
  • Consideration paid in respect of the property
  • Survey plan, local authority and town planning authority of the area.
  • Description/particulars of the property (fittings & fixtures)
  • Particulars of witnesses
  • Covenants, completion date, nature of transaction, capacity
  • Nature of assignor's title
  • Legal practitioner’s fees