ESM 314 – LAND LAW.
DETERMINE WHETHER OR NOT AN INFANT CAN ENGAGE IN A VALID MORTGAGE TRANSACTION IN NIGERIA.
20TH MAY, 2011.
CAN AN INFANT ENGAGE IN A VALID MORTGAGE TRANSACTION IN NIGERIA? Mortgage is the conveyance of title from the mortgagor to the mortgagee as a security in respect of a loan. An infant in legal terms is one who is of minor age (under 18 or 21 years) and cannot engage in a contractual agreement. The Land Use Act originated from the English Law and is used till date to govern land matters and an example is the Infant’s Relief Act, 1874, which states that an infant who has not attained the age of majority cannot execute a valid mortgage or claim repayment of money lent. Any such contract or mortgage shall be void and unenforceable. This goes to say that an infant cannot be a mortgagee or trustee. However amendments were made in the Law of Property Act, 1925, and goes to say that legal estate can only vest in the infant the capacity of a mortgagee or a trustee, where a trustee, who was appointed by the parents or legal guardian, is present. Also, the infant may hold equitable interest as a fulfilment of a condition and if he is a party to such a transaction. In Nigeria, the limitations placed on a minor's ability to contract, however, are established to protect first parties and third parties and these laws are in operation. Otherwise stated, an infant is incapable of entering into a legal and valid mortgage transaction and, if any other party enters into a transaction with an infant or a minor, the party would be held accountable for whatever damages may arise from the transaction. REFERENCES:
Transfer of Property Act, 1882.
A Practical Approach to the Law of Real Estate Property in Nigeria by I.O. Smith.