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This dissertation aimed at examining the problems associated with mortgage transactions in Nigeria which has created a lacuna in using Landed Property as security for loan. Land being one of the most important security for capital investment business and agriculture because of it’s acceptability is used to raise loans and advance from banks. The sources of information relied upon here are, related text materials, Judicial authorities, Statutes, Journals and Conference papers. Based on this sources this research found that mortgage of Landed Property is beset with a lot of litigation, default, delay and high cost of registration, discouraging investors and bankers, making mortgage transaction difficult and unattractive. Therefore using land as security for loan under banking law in Nigeria is hampered by an interplay of institutional, economic and social factors, such as protracted litigation, default, delay and high cost of registration as a result of inefficient and ineffective laws and also the entrenchment of the Land Use Act in the Constitution. On this note, this research was concluded by recommending that there is need to review laws, policies guiding mortgage transactions. There is also the need for a well defined policy in mortgage transaction and institutions to ease the registration process, the need to separate the Land Use Act from the Nigeria Constitution so as to make room for flexibility of transfer, alienation of interest and obtaining Governors consent in mortgage of Landed property.
1.1 Background to the Study
The Legal atmosphere in any given society affects business operation.
Business strives well when business legislation are well defined and aimed at
creating a favourable environment for business to thrive. These pieces of
legislation will further national goals, stimulating the economy, conserving
foreign exchange, enhancing competition among business entities, by
prohibiting monopolistic tendencies and unfair method of competition by
firms. It will also ensure that contracts are entered into and executed, with
justice done to the parties and their right adequately protected.
In Nigeria, there is a plethora of business and commercial laws that govern
different aspects of business environment for example, banking, insurance,
capital market, etc. At this point, it is important to know what “law is”. For
the purpose of this study, we shall adopt some definitions.
The definition by an eminent Nigerian jurist is that, “the law of a given
society is the body of rules, which are recognized as obligatory by its
1 Elias T. O (1956), Nature of African Customary Law, Routledge and Kegan Paul, p.55
It is therefore the entire body of principles, norms or regulation that governs
human conduct, the observance of which can be enforced.
Also “law” is defined by Cicero 1959 as, “the highest reason implanted in
nature, which commands what ought to be done and forbids the opposite . . .
what is right and that is also eternal, and does not begin or end with written
This means natural or moral laws which accord with our basic sense of
justice of what is wrong and right in the state of nature, as opposed to or in
contrast with legislative or man-made law.
Another definition is that, “law is a body of rules designed or formulated to
guide human conduct or action which are enforced among members of a
given state or society.”3
This refers to man-made law which exists to ensure legal order and due
administration of justice in an organized society.
During the period of the state of nature, man and animals wondered about in
the bush, forest, searching for food, a place to rest and eventually to lay head
when it is night in order to sleep. Sleep at that time (state of nature) used to
be at any place in the bush, like animals without shelter. This was prone to
2 Fitzgerad P.J. (1966), Salmond on Jurispruence. Twelfth Edition, Sweet & Maxwell, London, p. 643
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