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RECITAL IN A DEED: THE IMPORTANCE OF A CAREFUL DRAFTING.

The Court in Ashaka Cement Plc V. Asharatul M. Investment Ltd ( 2016) LPELR - 40196 (CA) gave an apt meaning of a recital as " A recital is defined as a preliminary statement in a contract or deed explaining the reasons for entering into it, or the background of transaction or showing the existence of particular facts- Suu V. Jobak Nig Ltd (2012) LPELR CA/IL/76/2010. It is usually preceded by the word " whereas" it is settled that where a recital contains a statement of the existence of a fact, it constitutes an estoppel and a party or parties who made the statement in the recital are not allowed to deny subsequently the existence of that fact ..".

Short as the above judicial pronouncement seems , it raises crucial and practical legal issues. Firstly , a recital by explaining the reasons for the contract or deed presupposes that the intents and purposes of any contract is in the recital, and it is trite law that oral evidence cannot vary the written contents of a deed , the Supreme Court in Egharevba V. Osagie (2010) All FWLR (pt 513) 1255 S C, held this position. That means that assuming in a Land suit instituted by Mr. A, and Mr . A tenders his Deed of Transfer, and the recital therein states that Mr. A ,s Predecessor in title acquired the parcel of land vide communal approval, it will amount to blowing hot and cold for Mr.A to allude in his pleadings that he is a beneficial owner of the land by virtue of family inheritance.

Therefore a recital creates an estoppel which binds Parties to the contract, if for example the recital is fundamentally defective and unreasonable , then the root of title becomes difficult to prove.

The rebuttable presumption of sufficiency of facts contained in a recital is given statutory backing by the Provisions of Section 162 of the Evidence Act LFN 2011, which provides that: Recitals , Statements and descriptions of facts, matters and Parties contained in deeds , instruments, Acts of national Assembly or statutory declarations twenty years old or more on the date of the contract in which such deed, instrument or other document is sought to be relied upon shall , unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of such facts, matters and Descriptions.

Therefore once a deed and statute are twenty years old, they shall be taken as correct untill proven otherwise, thus they must be a direct challenge of such old deed or law save the court will hold it as contained, see Olukoya V. Ashiru (2006) All FWLR ( pt 323) 1479 at 1499 SC.

Another Practical importance of a recital is when a document is missing but recited in another document: most times I see parties in litigation deposing to an affidavit and procuring police extract to substantiate the fact that a document is missing: this procedure is not bad for the sake of records and way of information to the whole world, however when the missing document is recited in a Deed of Transfer, and the matter is pending in Court, the law allows for pleading the document containing recital of the missing document, thus the missing document need not be tendered, see Atunrase V. Philips ( I996) I SCNJ 145. From the above authorities, it is my argument that the recital is the power house of a Deed, and should be carefully drafted. Oaikhena OSAGIE ESQ is a Benin Based Legal Practitioner., Email: oaikhena4trust@hotmail.co.uk,

N.B This Article is a modest contribution to the law and not for any other purpose.

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