Definition of Testacy Terms in Law

Here are some basic definitions of terms relating to valid will and their applications in the field of law.

1. Legacy or Bequest.  This is a gift of personal property.  A personal property is any property that is not land or building.  A car or a walking stick is a personal property. It is the same thing as bequest. 

2. Charging Clause.  When writing a Will, the testator includes a clause to the effect that the executor(s) is/are to draw some allowances for their services.  If this clause is missing from the document, the executor cannot be remunerated for administering the Will.  

3. Device.  A device is a gift of a real property.  A real property is land or building.

4. Gift. A gift made by the testator in a Will is mortis causa, meaning that it made to take effect on the death of the testator.  

A gift is said to be inter vivos where the property is to be transferred to the beneficiary before the death of the testator.  This is the best gift and is not subject to any arguments after the death of the maker of the gift.

5. Holographic Will.  A holographic will is a Will and Testament that has been entirely handwritten and signed by the testator. Normally, a will must be signed by witnesses attesting to the validity of the testator's signature and intent, but in many jurisdictions, holographic wills that have not been witnessed are treated as equal to witnessed Wills and need only to meet minimal requirements in order to be probated.

6. Intestacy.  An intestate person is a person who has left some property has died without making a valid Will.

7. Letter of Administration.  This is a document that is issued to a beneficiary in respect of an intestate person. The Probate Department of the High Court issues it. Before issuance, it is advertised for 21 days in case of contest against the claimant. A fee (on ad volerem basis, i.e. percentage) is paid by the applicant depending on the value of the property which include money in bank, buildings, cars, etc., now about 3 percent.  

8. Lapsed Gift.  A lapsed gift is a gift made in a Will where the beneficiary pre-deceased (dies before) the testator. A lapsed gift goes back into the residuary estate, which is to be shared among the residuary beneficiaries.

NET-OF-KIN  (NOK)

An NOK is a person who is chosen by the employee to represent his family in dealing with his employer if the employee should die during the pendency of his employment.  An NOK may not be a beneficiary from the estate of the deceased employee; he/she is merely a representative unless he/she is also the right person to inherit the deceased employee. 

Next of kin in commonwealth jurisdictions including UK and Nigeria may not necessarily refer to blood relatives. An individual can nominate any other individual as their next of kin. Legally, there is no requirement for the nominated person to be a blood relative, although it is common among many people.

 

If a person dies intestate, the laws of some jurisdictions require the estate to be distributed to the person's spouse and/or children. However, if there are none of these, the estate can often be distributed to the next closest group of living relatives, whether they be parents, grandparents, First cousins, aunts & uncles, or second cousins in extreme cases. If a person dies intestate with no identifiable next-of-kin, the person's estate generally escheats (i.e., legally reverts) to the government.  In such a case, the property is said to be bona vacantia.

The status of next-of-kin does not in any way imply that they stand to inherit any of the individual's estate in the event of their death.  As far as death benefits are concerned, they are merely contact persons.

6. Legal aid scheme

Legal aid is an arrangement whereby free or subsidized legal services are made available for in certain specified legal proceedings to a person with inadequate financial resources or who falls within certain specified income bracket (the poor bracket).  In Nigeria as in many other developing countries, there exists a legal aid scheme under the Legal Aid Act.  Under this scheme, some people can apply and receive free or almost free services of lawyers in private practice, under the Scheme. With this provision, no person should just leave matters to God because when we do so, we unwittingly allow impunity to rein in the land.

Those Eligible to Receive Legal Aid.  Legal aid is a scheme designed to help indigent people as follows:

• Those who have no income or whose income yearly does not exceed N5,000.

• Those whose income exceed N5,000 but where obtaining legal service outside the legal aid scheme would place them in the same position as set out above.

• Any person to whom it would be reasonable, taking all the circumstances into account, ought to be provided with legal aid.

Choice of Legal Practitioner

An applicant for legal aid services can choose his/her lawyer, but the Council may also assign a lawyer to represent him if he has not chosen one.

An applicant for legal aid service should approach either the Chief Judge of a State or the attorney-general’s office for advice.  

Additionally, many Non-governmental organizations (NGOs) also offer free legal services to indigent litigants particularly, accused persons.  To access NGO services, applicants are advised to visit the attorney-generals (Federal and States).

Applicants’ Contribution

The Council may ask applicants in appropriate cases, to make contributions.  Specifically, where the efforts of the Council results in recovery of money for the applicant, a 10% charge is usually recovered to boost the pool of funds.

7. Law of Property

Law of property is the aspect of law dealing with ownership or occupation of land and buildings. Property means land in law; properties mean items owned by a person. 

In ordinary parlance, when a person says that he owns a property (say, a house sitting on a plot of land), he is talking of ownership of not only the house but also the land on which the property is constructed.  This is not always true because property may in many circumstances, mean nothing more than a right of use, or usufruct. 

When the term is used to mean absolute ownership rather than transient ownership, it is meant that the owner has full control and authority over the thing owned.  This means that if it is land, he has a radical title to the land as an absolute owner. Today, in Nigeria as in many jurisdictions, there are no radical titles to land any more. What we have now is a kind of leasehold based on the principle of “occupancy rights”, a ransient or limited ‘ownership’ refers to right of possession and use of the thing in question. This so regardless that the possession or occupation may last ad infinitum, e.g. family ownership of land or customary tenancy. 

Types of Property

Real Property.  This is the same thing as land or landed property or real estate and includes buildings.  It means property that is permanently attached to land and therefore immovable.

Personal Property.  These are chattels, i.e. property that are tangible and moveable, e.g. a table, a chair, a car, etc.  These are also referred as choses in possession.

Choses in Action.  These are properties but are incapable of physical possession and which cannot be felt by the senses of touch, sight or smell.  They include debts, shares in companies, copyrights and bills of exchange.

Industrial Property.   Industrial property includes patents, designs and trademarks.  

A patent or design is the result of a person’s intellectual efforts which result in inventions which are unique and novel and which on registration, the law protects for 5 years (renewable every 5 years thereafter).  

A trademark is a unique design which distinguishes a brand of products from another brand.  When the design is registered with the Federal Ministry of Trade, it is protected and any imitation (called a get up) is an actionable tort.  The letter ® is usually written near the trademark as a way of giving notice to the public that the trademark is a registered one protected by law.  

Registration protects the trademark for 7 years in the first instance, renewable every 5 years thereafter periodically.

Intellectual Property.  Originally a chose in action, this type of property has been given a statutory recognition and classified as intellectual property under the Copyright Act 1990.  Intellectual property covers copyrights for literary, music, and electronic productions such as computer software. 

Infringement

If a person copies another person’s work without permission, he infringes the provisions of the Act.  Redress is available to the owner in civil court action and damages can be claimed but the Act also provides that the copying of another person’s works is also a criminal offence and the infringer can, if convicted, be fined up to N1,000 or 5 years imprisonment and in addition the goods as well as the equipment used will be forfeited to Government.  

Those who help the infringer to stock the offending items and those who sell them will be fined N100 for each copy or may be imprisoned for 5 years.

Special Notes on Real Property:

The Act came into effect in 1978 (at that time, called Land Use Decree), and changed the ownership basis for land in Nigeria from radical title to leasehold title.  Its main thrust is that from March 1978, all land in any State in Nigeria is vested in the Governor of that State.  This means that no person in Nigeria has radical title to any land from that time anymore.  Every person in possession of any land in Nigeria is now a lessee of the State Government, and therefore the State Government can take land from anyone provided the laid down procedure is followed, as follows:

The taking of land from an occupier is for public interest.  That means that the land will be used for public purpose (such as market, library, fire station, school, etc.). 

If the occupier fails to comply with the terms of the grant of the land, e.g. by neglecting to pay ground rent. 

The occupier must be paid adequate compensation in respect of the unexhausted developments on the land (buildings, other structures and economic trees).

The land thus acquired by Government from one person is not to be allocated to another person. 

Furthermore, the Act provides for the management of the land within a State for the benefit of the citizens, as follows:

The Governor can grant any person the use of a piece of land by giving that person a Statutory Right of Occupancy, and if the person desires it, a Certificate of Occupancy after the Right of Occupancy has been granted and that person has paid all the fees stipulated.

Rights of Occupancy (and Certificates of Occupancy) are usually granted for a period of years, the maximum being 99 years in the first instance.  

The Local Governments are permitted by law to grant Customary Rights of Occupancy to persons within their respective jurisdiction, but only the State Governor can issue a Certificate of Occupancy over lands (rural or urban).

No Local Government has power over lands situated in urban areas within a State. 

Those who have been holding land before the coming into effect of the Act can continue to hold such land under a deemed grant, that is, it is assumed that the Governor has already given such holders a Statutory Right of Occupancy. The advantage such holders have over those to whom a Right of Occupancy has been expressly granted by the governor is that they do not pay ground rents and their tenure is not limited to any number of years.

No holder of land can alienate it (sell it or mortgage it without first obtaining a consent of the Governor (who is the legal owner of the land).  Any such alienation is null and void under S.21 and S.22 of the Act.

Except for deemed grants, all grants are for certain number of years, usually 99 years but could be for 33 years. The deemed grants can be inherited in accordance with customary law of the deceased holder. 

Registration of Instruments

Every person who acquires land by purchase or gift in any State of Nigeria, must register the Deed at the Land Registry in the State in which the property is situate. 

Registration of the instrument conveying land from one “owner” (actually a grantee or lessee of government) to another is a serious matter. All land is vested on the governor in trust for the people. This means that no-one can say legally speaking, that he an owner of any land in Nigeria. The governor gives assent to transfers, thus conferring legal status on the new “owner” for legal purposes. 

8. Law of Contract – Essential Elements 

Five (5) essential elements -  

1. Offer

2. Acceptance

3. Consideration

4. Intention to create legal relations

5. Capacity

Any agreement not having these features is not a contract and therefore not binding on parties.  The courts will not be interested in such agreements and therefore such are not part of our study here.  

Offer starts a contract and moves from offeror to offeree.  It is different from invitation to treat and enquiries. There are specific offers and universal offers. Offers must be accepted or else they lapse.  Read: invitation to treat.  It is a prelude to offer and therefore not an offer. 

Acceptance may be express or by conduct. 

There must be consideration (meaning the benefit or advantage that a party hope to gain from entering into the contract).  Consideration must be tangible and must have 3 qualities. There must be intension that it is a serious business that the courts may hear about if one or more parties fail to perform their own part of the bargain. Domestic agreements and gentleman’s agreement lack such intension. 

Finally the parties must have capacity in law – meaning that they must be adults and that even at that they have alert and discerning minds to know what is good or what is bad for them. Therefore, persons under (a) the influence of involuntary intoxication, and (b) infirmity of mind, insanity and senility, have no capacity.

There is always a presumption that parties enter into contracts voluntarily, which also means that they are rational, hoping to gain from the contract.

9. Vitiating Elements 

Lack of Form

Mistake

Misrepresentation

Duress & Undue Influence

Illegality.

Lack of form

Contracts must conform to some laid down forms.  Some must be in writing and others must not only be in writing but must also be under Deed.  Outside the list of these two categories, contracts may be oral but it is better that all contracts be reduced to writing in case of problems later. 

Mistake

If there is a mistake on the part of any of the parties, the contact will be declared to lack consensus ad idem, meaning that there is no meeting of the minds of the parties, and this kills an otherwise good contract. There are kinds and types of mistake. Unilateral mistake, common mistake and mutual mistake can all vitiate a contract.  Mistakes can be operative or inoperative. An operative mistake goes to the foundation of the contract and destroy it while inoperative mistake is superficial as to quality and only give rise to damages but the contract goes on. 

Misrepresentations 

Misrepresentations are untrue statements that induce a person into a contract. They may be innocent, negligent or fraudulent. 

Duress means force. No-one should be forced into a contract. Undue influence is overbearing pressure on a person to become a party. Illegality means a contract prohibited by law or doing a contract in an illegal way, and it includes some form of immorality, especially with regard to sanctity of marriage.

10. Discharge of Contracts  

The contract can come to an end in the following ways -

Discharge by Performance

Discharge by Agreement

Discharge by frustration

Discharge by Breach.

Discharge by Performance Contracts can come to an end if it is performed by the parties.  Performance itself has many forms.  

Discharge by agreement   If the parties do not want to continue with the contract, then they can all agree to abandon the contract mutually.

Discharge by frustration. Contracts can also come to an end if it cannot be performed due to act of God, or due to anything that has happened which is outside the control of the parties. 

Discharge by breach.  This is when one party fails to do his/her own part.  The other party or parties can then sue for damages in court.

11. Sales of Goods Law – passing of property 

The law has in focus, the need to protect the buyer. On the one hand, the law recognizes the need to allow citizens to freely do business as they think fit but on the other hand, it also recognizes that the buyer is not always in equal bargaining position with the seller. This is not limited to Nigeria, which is a developing country. All over the world, governments recognize the superior strength of sellers and providers of goods and services and try to control this dangerous power, otherwise, there will eventually not be adequate value for money. This is the basis of aversion against monopolies. The law, especially equity, therefore takes a rather paternalistic view of buyers of goods and services and protects them via legislation instead of leaving them entirely to their own devices. The law, however, does not regulate everything. The doctrine of caveat emptor (buyer, beware) still exists today, especially in areas of warranties and representations, but this is only applicable for patent defects and not for latent defects. 

DEFINITION

S.4(1) of the SGL defines sale of goods as “a contract by which the seller transfer or agrees to transfer the property in goods to the buyer for a money consideration called the price”.  This is taken word for word from the definition in S.2 (1) of the English Sale of Goods Act, 1893.

Several important points are raised by the definition:

1) The SGL is applicable only to contracts of sale, i.e. of exchange of goods for money.  Therefore, transactions in other forms such as trade by barter, workmanship, and contracts of service etc. are not covered by this law.

2) There must be a contract underlying the operation of this law.  The Sale of Goods law therefore builds on the law of contract, so that where the rules of the common law contract has been violated, e.g. absence of consideration or absence of consensus ad idem, thus voiding a contract, we will not go further to talk of sale of goods law (SGL). 

3) The subject–matter of the contract is not the physical possession of the goods but the ownership of them, which is the acquisition of the property in the goods.  The property may be acquired at the time of the contract or at some future date as may be intended by the parties.  It can move to the buyer before he has physical possession of the goods.  

Property can pass to the buyer along with the risk even before he pays the price.  Property can also pass to the buyer along with the risk even before he takes possession of the goods. The law itself declares at s.19 Rule 1 that payment of the price is not the sole determinant of the passing of property.

THE PRICE

The law provides that price is not of essence in the contract for sale of goods.  This means that there will be a valid sale even if the price is not paid. S.11 provides that unless the parties have declared the intention that payment is condition for the validity of the contract, it is not of essence. This means that payment or non-payment of price does not determine whether a sale has taken place or not.  If the price is not paid, all that the seller can do is to sue for payment. 

THE GOODS

S.2 (1) defines goods as including all chattels personal other than things in action and money. Chattels mean personal property such as a car, a book or a ship. Goods also include crops and other things attached to land, which can be severed before sale or under contract of sale.  Goods may exist at the time of contract or they may be future goods.   S.6 recognizes goods not yet manufactured.

The definition, however, excludes land and things fixed to land.  It also exclude money and human beings. 

Implied Terms

Certain duties are implied by the SGL into every contract for the sale of goods. Therefore, whether the terms are actually included in the contract or not, the law says they are there for the protection of the parties, especially, the buyer.

Examples of implied terms are customary practices. Breach of any of them gives rise to a right to seek redress in the law courts. The redress is basically to declare the contract breached. The consequential relief is either to be awarded damages as appropriate or to be awarded a decree of specific performance, i.e. forcing the other party to go ahead and perform.

Duties of the Seller

(1) Duty to pass good title and warranty of quite possession and freedom from encumbrances.  S.13(1) SGL provides that there is an implied condition in every contract of sale of goods, that the seller, in the case of a sale, has the right to sell, and in the case of agreement to sell, that he will have such a right at the time when the property is to pass. See also S. 13(2) and S.22 (1) of the Plateau State SGL.  Agents who are not owners will have right to sell provided they are operating in normal course of business. Clearly stolen goods do not confer title on sellers.  

Market Overt

An innocent seller of a stolen chattel who has no notice that what he sells is stolen may pass good title (therefore has right to sell) if he sells in a circumstance of market overt, i.e. in an open market during usual business hours.

(2) Duty to deliver the goods.  Delivery means voluntary transfer of possession. Place of delivery as provided by S.40 is the place of business of the seller or his residence or at any other agreed place including a warehouse, or from his agent or bailee. The goods must be in a deliverable state.

(3) Duty to supply goods at the right time.

(4) Duty to supply goods in the right quantity. When the seller is obligated under the contract to dispatch the goods, then he must deliver the right quantity.(a) If goods are delivered short, the buyer may reject the goods (s.41(1)) as he is not bound to accept delivery by instalment unless expressly agreed at the time of entering into the contract. (b)  If the goods are over-delivered, the buyer may reject everything or may accept only the quantity bought and the rest returned at the seller’s expenses. (c) The buyer may also reject the goods if they are delivered in an admixture with other goods.  

(5) Duty to supply goods of the right quality. S.14 states that when goods are sold by description, there is an implied condition that they will correspond with the description.

(a) Merchantability.   S.15(2) SGL provides that there is an implied condition of merchantability of goods sold in the course of business.  Merchantability means that the goods are fit for the purpose to which such goods are normally put.  The provision exempts defects pointed out to the buyer or patent defects in the case where the buyer in fact inspected the goods.  For the merchantability test to apply, the goods must be sold in the course of business, which can be distinguished from private sales.

(b) Fitness for Particular Purpose.  S.15(3) SGL places a duty on the seller who sells in the course of business that the goods are fit for any special purpose which the buyer discloses to the seller as the purpose to which he intends to put the goods.  

DUTIES OF THE BUYER

There are two main duties of the buyer, as follows:

(a)Duty to Pay the Price

Ss.38, 39 and 49 lays a general duty on the buyer to pay the price. S.39 states that the buyer, in the absence of contrary agreement, is not entitled to claim possession of the goods without paying the price. Payment must be by cash unless agreed otherwise at the time of the contract, therefore payment by negotiable instruments (of which cheque is one) is only a conditional payment and in the case of default, the seller can sue either on the contract or under the Dishonoured Cheques Act or both. (See S. 58(1) of the SGL).  However, as stated elsewhere above, time of payment of the price is not of essence in a contract for the sale of goods. This means that it is a warranty and not a condition. (See S. 19 Rule 1). Except where the goods are perishable or where a reasonable notice has been given, the seller may not resell without liability to the buyer. The seller however, has the right to sue for the price and for damages, as well as a right to lien and stoppage in transit.

(b) Duty to Take Delivery of the Goods

The general rule is for the buyer to take delivery from the seller’s place of business and not for the seller to send the goods to the buyer. S.38 places equal duties on the seller on the one hand to deliver the goods, and on the buyer on the other hand, to take delivery. Failure by either party to perform gives rise to right of action in the law court. 

Time of delivery is prima facie of essence and the buyer can breach this condition if:

He inordinately delays to take delivery, amounting to abandonment warranting the seller to treat it as repudiation.

The goods are perishable and the buyer delays in making payment.

The sale is a spot sale, requiring immediate delivery and payment, but the buyer delays in making payment and taking delivery thereof.

OUSTER OF EXCLUSION CLAUSES

The principle of Fundamental Obligation Theory has been included in our Statutes. S.65(2) of the SGL provides that the implied duties of the seller contained in the Law cannot be excluded by any clause in any contract for sale of goods. The importance of this powerful section is that sellers of electronics and spare parts, who normally insert statements in receipt/invoice to the effect that goods bought cannot be returned or that no refund can be made, are infringing the SGL.  The law is waiting for unsatisfied consumers of goods to complain.  

However, it must be understood that this section is concerned with goods bought: 

(a) in the course of business, 

(b) and goods bought as new and not second-hand goods.

“PROPERTY” IN SALE OF GOODS CONTRACTS

The crucial point in the contract for sale of goods is the point at which property in the goods passes from the seller to the buyer. There are three attributes to note with regard to the passing of property –

A. Title. Passing of property always indicates transfer of title to the buyer.

B. Risk. Unless contrary intention is indicated in the contract, the risk passes when the property passes to the buyer.

C. Frustration. Any mishap to the goods after the passing of property cannot amount to frustration because the goods belong to the buyer as soon as the property passes.

It is when property has passed that the buyer can say that the goods have become his. In simple contracts, property will almost always pass on delivery of the goods to the buyer. If the goods are not yet delivered, property can pass to the buyer, but in most cases, the seller has the right to resell, and still sue for damages for non-acceptance of the goods. 

S.18(1) provides that property will pass when the parties intend it to pass. In most cases, this intention is hardly expressed, leaving the courts to construct what the intention of the parties was at the time the contract was made.  S.19 helpfully lays down five rules to guide the courts in this problematic area. They are as follows: 

(1) In an unconditional contract for the sale of specific goods in a deliverable state, property will pass when the contract is made unless contrary intention is expressed. The postponement of delivery and/or payment of the price are not such intention.

(2) In a contract of sale of specific goods, in which the seller is bound to do something to the goods for the purpose of putting them in deliverable state, the property will not pass until such thing is done and the buyer is notified of it. The English court held in Acraman & Anor V. Morrice (1950) that where the sale is conditional, that condition has to be fulfilled and the buyer notified before the buyer can be said to have irretrievably entered the contract.

(3) In a contract for the sale of specific goods in a deliverable state, which the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price,  property shall not pass until such act or thing is done and the buyer has notice thereof.

(4) Where the goods are delivered to the buyer on approval or on sale or return or other similar terms, the property will pass to the buyer-

(i) When the buyer approves or accepts the goods/transaction.

(ii) When the buyer does an act amounting to approval or acceptance or an act inconsistent with that of a person who does not intend to be a purchaser e.g. by reselling or pledging the goods.  

(iii) When he retains the goods beyond the time fixed within which he can reject the goods or if no time is fixed, a reasonable time. 

(5) When, in a contract for the sale of unascertained goods, or future goods, by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract by either party with assent of the other party, property will pass to the buyer.

Reservation of the Right of Disposal

A seller may stipulate in the contract that he reserves the right of disposal until a condition is fulfilled (usually payment of the price). In such a case property will not pass until the condition is fulfilled, even if the goods have being dispatched to the buyer. The advantage is that where the buyer becomes insolvent, the seller can take back his goods even if delivered to the buyer, including the power to trace the goods as converted into other goods or resold to third parties, under the doctrine of tracing.

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