THE GAMBIA LAW SCHOOL

LEGAL DRAFTING AND CONVEYANCINGS

LECTURE NOTES

DEEDS

1. WHAT IS A DEED? – According to BLACK’S LAW DICTIONARY, a

deed is a written instrument signed, sealed and delivered by one person
to another to convey lands tenements or hereditaments. It usually
creates a binding obligation.

2. JOWITT’S DICTIONARY OF ENGLISH LAW 2ND EDITION defines it as:

A writing on paper, vellum or parchment, signed, sealed and delivered,

whereby an interest, right, or property passes, or an obligation binding
on some person is created or which is in affirmantion of some act
whereby interest, right or property has passed.

3. Deeds are essential for the validity of certain legal acts Examples of
deeds include: Conveyances, assignments and leases of real property
Bonds and powers of attorney.

4. TYPES OF DEED – There are three main types of deeds:

a. Deed Indenture – executed by two or more parties; essential in a

transaction relating to land involving two or more parties.
b. Deed-poll – a singled deed in the form of a declaration to all the
world of the grantor’s intention. It is usually made and executed by
one person e.g. effecting a change of name or a Power of
Attorney. If there is no recital it usually speaks in the first person. If
recitals are introduced, it speaks in the third person.
c. Supplemental Deed – as its name amiimplies, this is a Deed which
modifies an existing Deed, reciting the existing Deed and the
paragraphs it seeks to amend.

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5. The requirements of a deed are:
- Sufficient parties
- Proper subject of assurance
- Must be in writing – whether by hand, printed or typed, in any
language, on paper, vellum or parchment
- Language should be legally sufficient, without the aid of
punctuation or parenthesis
- Arranged in a formal and well-understood sequence.

6. FORMAL PARTS OF DEED – There are four main parts to a deed,

namely Introductory, Operative, Miscellaneous and Concluding parts

Introductory Parts – The Introductory part consists of four parts

a) Commencement (Exordium) – Traditional Commencement is

‘THIS INDENTURE’ However, the following are used for
simplification and clarification as modern drafting requires, ‘THIS
(followed by the type of document) e.g. MORTGATE’ ‘THIS
CONVEYANCE’ or ‘THIS ASSIGNMENT’

Instead of ‘THIS’ the indefinite article -‘A’/‘AN’ can also be used.

b) Date – Every deed should provide for the date of its execution.
Care must always be taken to ascertain whether there is a date at
the commencement of the deed or agreement. The form of some
deeds does not provide for the date appearing at the beginning
and in such cases the date must be inserted in the testimonium
clause.

c) Parties – Here the names, description, capacities and addresses

of the parties to the agreement are set out. The description of a
party may include the phrase:
“which expression shall where the context admits include is
successors in title, personal representatives and assigns” by
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 way of further definition. This form is not now commonly used in
modern drafting, which leans towards having a definition clause.

This part is introduced by the word, BETWEEN’. The word

‘AMONG’ may be used when there are more than 2 parties and
the word ‘AND/and’ joins the various parties.

Every person who conveys any estate or interest, or enters into a

covenant, or is to be bound by the deed, should be made a party.

Parties are classified in parts according to their several interests.

Parties having a joint interest should normally be of the same part,
but those having distinct though undivided interests should be of
several successive parts.

Those who are to transfer any interest or relinquish any right

should come first. Among the foregoing those having legal estates
should come before those having equitable estates. The larger
interest should precede lesser interest.

Second should be consenting parties and covenantors.

Then those who take any estate or interest – among these real
owners, then trustees, then these those who inserted to give them
notice of the deed e.g. creditors, executors etc.

When a person acts in two or more capacities he should named in

distinct parts (Example- AJ of Manjai Kunda of the first part and AJ
of Manjai Kunda as trustee for CD of the second part)

d) Recital – this explains the reason/background for/to the

transaction and is introduced by the words ’WHEREAS’. It
consists of two types – narrative, which states the root of title, by
reciting the ownership, in whom it is presently vested and
introductory, indicating the purpose of the Deed, and intention
e.g.. to transfer, to create security etc.

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 A recital is useful in determining the true construction of a deed,
but cannot modify a clear provision in the operative part. Its
absence does not invalidate a deed, but it is advisable to have it
where e.g. the history of devolution is problematic or e.g. in a
mortgage it usually refers to other agreements entered into by the
parties

7. MAIN/OPERATIVE PART

a) Testatum – introduces the operative part with ‘NOW THIS DEED

WITNESSES as follows.

b) Consideration – states the value of the transaction. It is not only

monetary; it may be for ‘love and affection’; for a peppercorn amount,
it is used to assess the stamp duty payable; and signifies that a
receipt will be issued for the transaction.
c) Receipt Clause – evidence of payment.

d) Covenant for title – The vendor must state the capacity in which
he/she is conveying e.g. as-
i. Beneficial owner
ii. Personal Representative
iii. Mortgagor
iv. Trustee
v. Donor

With implied covenants that the vendor has not encumbered the
land.

e) Words of grant – used to convey the purport of the agreement e.g.

‘ASSIGNS’ ‘CONVEYS’ ‘TRANSFERS’

e) Operative Words – show the intention of parties to pass a legal

estate; it also introduces the parcels with the words ‘ALL THAT’

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 f) Parcel Clause – a description of the property which should be precise
and adequate
g) Habendum – limiting and defining the interest – it describes the
estate given by the Vendor, and is expressed thus – ‘TO HOLD
UNTO THE PURCHASER’

8. MISCELLANEOUS PART – used depending on the nature of the

transaction. E.g. an undertaking for safe custody and acknowledgement for
production clause, such a clause including particulars of all documents
retained by the vendor to which the purchaser has right, as where a vendor
has a certificate of occupancy covering two plots of land and sells one of
the plots. On the sale of the one plot pending the issuance of a new
certificate of occupancy to each party, a clause would be inserted under
this part whereby the vendor would make an acknowledgement and give an
undertaking in respect of the document retained by him/her.

Exceptions, which are appurtenant rights withheld from the purchaser in the
grant by the vendor, and reservations, which are new rights created by the
parties for the benefit of the vendor, are also included under this part of a
deed.

9. CONCLUDING PART

a) Testimonium – introduces the execution clause

EXAMPLES OF TESTIMONIUM CLAUSE

Testimonium: deed between parties

IN WITNESS whereof the parties have executed this deed on the
date first above written.

IN WITNESS whereof the parties have set their hand and seal the
and year first above written

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 Testimonium: deed poll

IN WITNESS of which [name] has [or] I [name] have executed this

deed on the date first above written [or] [date].

Testimonium: original deed and counterpart

IN WITNESS of which the parties have respectively executed the
original and counterpart of this deed on the date first above
written.

Testimonium: deed executed by individual[s] and company

IN WITNESS of which the parties have executed this deed [or]
[name] Ltd has caused it to be signed as a deed by two-
directors[or] one director and the company secretary [or] its
common seal to be affixed to it on the date first above written

Testimonium: deed executed by attorney

IN WITNESS of which [TIJAN GAYE] by [ AMIE SAMBA] of
[address] [his] attorney [by virtue of a power of attorney under the
hand and seal of [TIJAN GAYE] dated [date]] has executed this
deed on the date first above written.

Testimonium: power of attorney executed at the direction of

the donor

IN WITNESS of which [name] of [address] acting by the direction

of [name] has executed this deed on the date first above written,

b) Schedule – this is where detailed information is recorded, such as

a more extensive description of the property a diagram, survey
plan, inventory of items.

The correct position for the Schedule is between the Testimonium

and Attestation clause.

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c) Execution – signature of the document, which could be a thump
print, mark or the actual signature of the person signing. It is
essential that a deed is not only executed but it must be executed
by the proper parties in the proper manner.

Chapter IV of the Evidence Act, Cap. 6:06, contains provisions on

‘Proof of Execution of Documents’

d) ATTESTATION – a deed must be attested by witnesses of full age

and capacity. A deed will not be invalid because it is not attested.
However, there are certain documents, which the law requires to
be attested; a deed executed by a corporation must be attested by
a director and clerk, secretary or other permanent officer; and the
execution of a will must be witnessed and attested by two
witnesses.

Most common example:

Signed sealed and delivered by the

within named ………..in the presence of:

………………………
[signature of witness]
[address and description]

e) Delivery – A deed takes effect on delivery. The delivery is effected

either by words or by acts i.e. by handing it over

f) Franking – is the endorsement of the name and address of the

lawyer who prepared the deed. As stated earlier, franking is a
requirement for registration in the land registry. Also see section
40, 41 and 44 of the legal practitioners Act Cap 701

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EXAMPLES OF ATTESTATION CLAUSES

Attestation: deed by individual – normal form

SIGNED AS A DEED by [name]in the presence:
[signature of witness]
[address and description]

Attestation: deed executed by company’ with common seal

THE COMMON SEAL OF [name] Ltd was affixed
In the presence of [(but with the intention that this
[common seal]
Deed will not be delivered until it is dated:]
[signature]
Director

[signature]
Secretary

Attestation: deed executed by company without or not using

common seal

SIGNED AS A DEED by [name] Ltd by [name] a

Director and [name] the secretary [or] a director: [signature]

Attestation: deed executed by attorney for company

SIGNED AS A DEED by [name] as the attorney of

And on behalf of [name] Ltd in the presence of:]
[signature]

[signature of witness]
[address and description]

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Attestation: deed in which interlineations have been made
and initiated

SIGNED AS A DEED BY [name] (the words ‘and

etc. having been first inserted between the first and
[signature]
second lines of the second page and initialed by
[him] in the presence of:

[signature of witness]
[address and description]

Attestation: deed executed at direction of party

SIGNED AS A DEED by [name] at the direction

[signature
And in the presence of [name] and in the presence (party of deed)]
Of:

[signature (signatory) ]

[signature of witness]
[address and description]

Attestation: deed executed by attorney

SIGNED AS A DEED by [name] as the

[signature
Attorney of and in the [name] and in the presence (party of deed)]
Of: [signature
(signatory)]

[signature of witness]
[address and description]
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Attestation: deed executed by a marksman or illiterate person
the contents being read over to him

SIGNED AS A DEED by [name] this deed having

been first truly and audibly read over to him by [or] the mark X of
in the presence of the undersigned when [he] [name]
appeared perfectly to understand it and made [his][or]
mark in my presence in the presence of:
[name] X [his] mark

[signature of witness]
[address and description]

Attestation: deed executed by a blind person

SIGNED AS A DEED by [name] this deed having

been first truly and audibly read over to him by [he]
[signature]
being blind) [or]in the presence of the under-
signed when ([he] appeared perfectly to understand it]
presence of:

[signature of witness]
[address and description]

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