“The Court is unwilling to award what was not claimed. But
the equity of the case and good conscience, may justify such an
award where there is unconscionable conduct on the part of one of
the parties with respect to the transaction such as the 1st
Respondent’s unconscionable conduct in this case …”
In the Court of
Appeal
In the Lagos Judicial Division
Holden at Lagos
On Friday, the 24th Day of November, 2017
Before Their Lordships
Joseph Shagbaor Ikyegh
Tijjani Abubakar
Ugochukwu Anthony Ogakwu
Justices, Court of Appeal
CA/L/359/2015
Between
1. Mortgages PHB Ltd.
2. Keystone Bank Ltd ………Appellants
And
1. Dr. Oladipo Olasimbo
2. Mrs. Olaronke Taiwo
3. Engineer Kamarudeen Olasimbo
4. Mr. Tola Olasimbo ……Respondents
5. Supreme In Glory Treasures Nig. Ltd. .
(Lead Judgement delivered by Hon. Joseph
Shagbaor
Ikyegh, JCA)
Facts
The 1st to 3rd Respondent are children of a certain Dr.
Olanrewaju Olasimbo who died testate in 1993, and the 4th
Respondent is the son of the 1st Respondent while the 5th Respon-
dent is a company owned by the 1st Respondent. Late Dr. Olanrewaju
Olasimbo had in his Will, stated that the Will should become
operative 10 (ten) years after his death or after the education of
the children listed in his will, whichever came first. Sometime in
March 2008, the 4th Respondent obtained a loan from the Appellants,
which was guar- anteed by the 1st Respondent by the deposit of
title document in respect of the property situate at No. 30,
Olatunde Ayoola Street, Off Ikorodu Road, Lagos. The title document
bore the name of Dr. Olanrewaju Olasimbo, as the purchaser of the
property. The 1st Respondent wrote a letter of consent as the
deposi- tor of the title document with the name Dr. O.O. Olasimbo,
and submitted a corporate resolution. Also, the tripartite legal
mortgage created in favour of the Appellants had the name of Dr.
Olanrewaju Olasimbo as the Guarantor and the Governor’s approval
was obtained for the mortgage transaction. The 4th Respondent
defaulted in repaying the loan, and the Appellants took steps to
exercise their right of sale of the mortgaged property. The
foregoing prompted the 1st to 3rd Respondent to sue the Appellants,
alleging that the mortgaged property belongs to the 2nd and 3rd
Respondents by virtue of their father’s Will. The trial Court gave
judgement in favour of the 1st to 3rd Respondents, and ordered the
Appellants to return the title document to them. The trial Court
however, found the 1st, 4th and 5th Respondents liable to the
Appellants for the indebtedness as per the Appel- lants’
Counter-claim, but the Court failed to make an Order directing them
to deposit another title docu- ment in place of the one ordered to
be returned to the 1st to 3rd Respondents. Aggrieved by the
judgement, the Appellants appealed to the Court of Appeal.
Issue for Determination
The issue for determination was as follows: Whether the trial
Court was right to have ordered the Appellants to return the title
documents mortgaged in respect of the loan granted to the 4th
Respondent, on the basis that a mortgage transaction cannot subsist
on a property which is subject of a Will.
Arguments
In arguing this issue, Counsel for the Appellants stated that
with the non- disclosure of the death of the original owner of the
property and the failure to enter any caveat at the Lands Registry
to warn pro- spective stakeholders that the property is encumbered
having been Willed to the 2nd and 3rd Respondents, the trial Court
should not have ordered the return of the title documents to the
Respondents. He stated that the consequence of the concealment,
should not have been visited on the Appellants. Counsel for the
Appellant also argued that the 2nd Respondent should have been
found liable by the trial Court, as she was implicated in the
mortgage transaction. Further, the Counsel argued that from the
facts and evidence before the Court, it appeared that the 2nd
Respondent conspired with the 1st Respondent and allowed the 1st
Respondent to misrepresent the status of the mortgaged property to
the Appellant. He referred to the text books – Nigerian Conveyance
Practice, Drafting and Precedents by P.A.O. Oluyede (2003 edition)
and Property Law, 4th Edition by Roger J. Smith in arguing that
there was a valid mortgage and the principle that once a mortgage
always a mortgage, inures in favour of the Appellants. Counsel
argued that based on the misrepresentation by the 1st to 3rd
Respondent, the trial Court should have ordered the 1st Respondent
to deposit another title document in place of the earlier one which
the Court directed the Appellants to return to the 2nd and 3rd
Respondents. Counsel to the 1st to 3rd Respondents on the other
hand, argued that from their pleadings and the 2nd Respondent’s
evidence under cross-examination before the trial Court, it was
clear that no situation existed to have caused the 1st to 3rd
Respondents to enter a caveat at the Lands Registry as the 2nd and
3rd Respondents were unaware of the existence of the mortgage
transaction. He argued that the trial Court was right to have held
that the Appellants should have exercised due care and diligence by
investigat- ing the Mortgagor’s title, and any encumbrance on the
mortgaged property. It was argued further that the mortgage could
not have been made as the property was subject of a Will. They
referred to Section 4(2) of the Administration of Estate Law,
Cap 3, Laws of Lagos State, 1962 and the case of EJIGINI v
EZENWA (2003) FWLR (Pt. 174) 226 to submit that
mortgage transaction could not have been made, over the property
which is subject of a Will. Finally, Counsel for the 1st to 3rd
Respondents, argued that the trial Court could not have ordered
that the title document be replaced, as the Appellants did not pray
for same.
Court’s Judgement and Rationale
Deciding the issue, the Court of Appeal found that there was a
title document in support of the loan transaction in this instance,
which is a Deed of Indenture. The duty on the person
investigating title to a property is to take care; he is not
required to take a chance or to be omniscience or a
detective. In this case, the Appellants took the
reasonable precaution to obtain the original copy of the title
document and the Deed of Indenture from the 1st Respondent, which
bore the same name as that given by the 1st Respondent in the
tripartite mortgage agreement. The Appellants also verified and
confirmed the title in that name, vide their search at the Lands
Registry. As defect in title to land is not easily ascertainable,
the 1st Respondent had the duty to tell the truth and disclose any
defect in his title. Relying on the case of IMANA v
ROBINSON (1979) 12 NSCC 1 at 19, equity came to the rescue
of the Appellants in view of the fact that the title documents bore
the same name as that on the agreement. The opportunity to
investigate to ascertain the inaccuracy of the title document, no
longer applied. Further, the Appellants’ pleadings did not allege
that the 2nd and 3rd Respondents colluded with the 1st Respondent,
to hoodwink the Appellants into entering the mortgage transaction
as alleged by the Respondents. This submission was merely contained
in the address of Counsel and the law is clear that address of
counsel and evidence unsupported by material facts in the pleadings
must be disregarded – BURAIMOH v BAMGBOSE (1989) 3
NWLR (Pt. 109) 352 at 365.
On the submission of Counsel for the Appellants
about the principle of law on mortgage, the Court held
that the principle that once a mortgage, always a mortgage, would
have applied to render the mortgage transaction relating to the
title document valid for enforcement by the Appel- lants, if the
mortgaged property was not willed to an innocent
person. To apply the principle here will
deprive the 2nd and 3rd Respondents of
the property willed to them, when there is no evidence that they
are to blame for the misrep- resentation. In view of the provisions
of Section 42 of the Administration of Estate Law (supra), a Will,
which is the last wish of the Testator and owner of the property
willed, should be respected. With regard to the
submission that the trial Court should have ordered that the 1st
and 4th Respondents provide the Appellants with another title
document in respect of the transaction, Their Lordships held that
because the Counter-claim of the Appellant did not
request for a relief to swap the property in issue, the trial Court
was unwilling to award what was not claimed. However, equity and
good conscience may justify such an award where there is
unconscionable conduct on the part of one of the parties with
respect to the transaction such as the 1st Respondent’s
unconscionable conduct in this case. TRENCO (NIG.) LTD. v AFRICAN
REAL ESTATE AND INVESTMENT CO. LTD & ANOR. (1978) 1 LRN 146 at
154. For the foregoing reasons, the Court dismissed
the appeal as it relates to the 2nd and 3rd Respondents, but
allowed the appeal with respect to the 1st Re- spondent on the
ground that equity and good con- science justify that the title
document of the property bequeathed to 1st Respondent be delivered
to the Appellants as replacement for the title document of the
property willed to the 2nd and 3rd Respondents.
Appeal Allowed in Part.
Representation: Mr. U.I. Obi and Mr. T.N.T.
Okonkwo for the Appel- lants. N. Okoli Esq. and Mr. O. Ogunlodoye
for the 1st to 3rd Respondent.
Reported by Optimum Publishers Limited
(Publishers of the Nigerian Monthly Law Reports
(NMLR))
“The Court is unwilling to award what was not claimed. But
the equity of the case and good conscience, may justify such an
award where there is unconscionable conduct on the part of one of
the parties with respect to the transaction such as the 1st
Respondent’s unconscionable conduct in this case …”
In the Court of
Appeal
In the Lagos Judicial Division
Holden at Lagos
On Friday, the 24th Day of November, 2017
Before Their Lordships
Joseph Shagbaor Ikyegh
Tijjani Abubakar
Ugochukwu Anthony Ogakwu
Justices, Court of Appeal
CA/L/359/2015
Between
1. Mortgages PHB Ltd.
2. Keystone Bank Ltd ………Appellants
And
1. Dr. Oladipo Olasimbo
2. Mrs. Olaronke Taiwo
3. Engineer Kamarudeen Olasimbo
4. Mr. Tola Olasimbo ……Respondents
5. Supreme In Glory Treasures Nig. Ltd. .
(Lead Judgement delivered by Hon. Joseph
Shagbaor
Ikyegh, JCA)
Facts
The 1st to 3rd Respondent are children of a certain Dr.
Olanrewaju Olasimbo who died testate in 1993, and the 4th
Respondent is the son of the 1st Respondent while the 5th Respon-
dent is a company owned by the 1st Respondent. Late Dr. Olanrewaju
Olasimbo had in his Will, stated that the Will should become
operative 10 (ten) years after his death or after the education of
the children listed in his will, whichever came first. Sometime in
March 2008, the 4th Respondent obtained a loan from the Appellants,
which was guar- anteed by the 1st Respondent by the deposit of
title document in respect of the property situate at No. 30,
Olatunde Ayoola Street, Off Ikorodu Road, Lagos. The title document
bore the name of Dr. Olanrewaju Olasimbo, as the purchaser of the
property. The 1st Respondent wrote a letter of consent as the
deposi- tor of the title document with the name Dr. O.O. Olasimbo,
and submitted a corporate resolution. Also, the tripartite legal
mortgage created in favour of the Appellants had the name of Dr.
Olanrewaju Olasimbo as the Guarantor and the Governor’s approval
was obtained for the mortgage transaction. The 4th Respondent
defaulted in repaying the loan, and the Appellants took steps to
exercise their right of sale of the mortgaged property. The
foregoing prompted the 1st to 3rd Respondent to sue the Appellants,
alleging that the mortgaged property belongs to the 2nd and 3rd
Respondents by virtue of their father’s Will. The trial Court gave
judgement in favour of the 1st to 3rd Respondents, and ordered the
Appellants to return the title document to them. The trial Court
however, found the 1st, 4th and 5th Respondents liable to the
Appellants for the indebtedness as per the Appel- lants’
Counter-claim, but the Court failed to make an Order directing them
to deposit another title docu- ment in place of the one ordered to
be returned to the 1st to 3rd Respondents. Aggrieved by the
judgement, the Appellants appealed to the Court of Appeal.
Issue for Determination
The issue for determination was as follows: Whether the trial
Court was right to have ordered the Appellants to return the title
documents mortgaged in respect of the loan granted to the 4th
Respondent, on the basis that a mortgage transaction cannot subsist
on a property which is subject of a Will.
Arguments
In arguing this issue, Counsel for the Appellants stated that
with the non- disclosure of the death of the original owner of the
property and the failure to enter any caveat at the Lands Registry
to warn pro- spective stakeholders that the property is encumbered
having been Willed to the 2nd and 3rd Respondents, the trial Court
should not have ordered the return of the title documents to the
Respondents. He stated that the consequence of the concealment,
should not have been visited on the Appellants. Counsel for the
Appellant also argued that the 2nd Respondent should have been
found liable by the trial Court, as she was implicated in the
mortgage transaction. Further, the Counsel argued that from the
facts and evidence before the Court, it appeared that the 2nd
Respondent conspired with the 1st Respondent and allowed the 1st
Respondent to misrepresent the status of the mortgaged property to
the Appellant. He referred to the text books – Nigerian Conveyance
Practice, Drafting and Precedents by P.A.O. Oluyede (2003 edition)
and Property Law, 4th Edition by Roger J. Smith in arguing that
there was a valid mortgage and the principle that once a mortgage
always a mortgage, inures in favour of the Appellants. Counsel
argued that based on the misrepresentation by the 1st to 3rd
Respondent, the trial Court should have ordered the 1st Respondent
to deposit another title document in place of the earlier one which
the Court directed the Appellants to return to the 2nd and 3rd
Respondents. Counsel to the 1st to 3rd Respondents on the other
hand, argued that from their pleadings and the 2nd Respondent’s
evidence under cross-examination before the trial Court, it was
clear that no situation existed to have caused the 1st to 3rd
Respondents to enter a caveat at the Lands Registry as the 2nd and
3rd Respondents were unaware of the existence of the mortgage
transaction. He argued that the trial Court was right to have held
that the Appellants should have exercised due care and diligence by
investigat- ing the Mortgagor’s title, and any encumbrance on the
mortgaged property. It was argued further that the mortgage could
not have been made as the property was subject of a Will. They
referred to Section 4(2) of the Administration of Estate Law,
Cap 3, Laws of Lagos State, 1962 and the case of EJIGINI v
EZENWA (2003) FWLR (Pt. 174) 226 to submit that
mortgage transaction could not have been made, over the property
which is subject of a Will. Finally, Counsel for the 1st to 3rd
Respondents, argued that the trial Court could not have ordered
that the title document be replaced, as the Appellants did not pray
for same.
Court’s Judgement and Rationale
Deciding the issue, the Court of Appeal found that there was a
title document in support of the loan transaction in this instance,
which is a Deed of Indenture. The duty on the person
investigating title to a property is to take care; he is not
required to take a chance or to be omniscience or a
detective. In this case, the Appellants took the
reasonable precaution to obtain the original copy of the title
document and the Deed of Indenture from the 1st Respondent, which
bore the same name as that given by the 1st Respondent in the
tripartite mortgage agreement. The Appellants also verified and
confirmed the title in that name, vide their search at the Lands
Registry. As defect in title to land is not easily ascertainable,
the 1st Respondent had the duty to tell the truth and disclose any
defect in his title. Relying on the case of IMANA v
ROBINSON (1979) 12 NSCC 1 at 19, equity came to the rescue
of the Appellants in view of the fact that the title documents bore
the same name as that on the agreement. The opportunity to
investigate to ascertain the inaccuracy of the title document, no
longer applied. Further, the Appellants’ pleadings did not allege
that the 2nd and 3rd Respondents colluded with the 1st Respondent,
to hoodwink the Appellants into entering the mortgage transaction
as alleged by the Respondents. This submission was merely contained
in the address of Counsel and the law is clear that address of
counsel and evidence unsupported by material facts in the pleadings
must be disregarded – BURAIMOH v BAMGBOSE (1989) 3
NWLR (Pt. 109) 352 at 365.
On the submission of Counsel for the Appellants
about the principle of law on mortgage, the Court held
that the principle that once a mortgage, always a mortgage, would
have applied to render the mortgage transaction relating to the
title document valid for enforcement by the Appel- lants, if the
mortgaged property was not willed to an innocent
person. To apply the principle here will
deprive the 2nd and 3rd Respondents of
the property willed to them, when there is no evidence that they
are to blame for the misrep- resentation. In view of the provisions
of Section 42 of the Administration of Estate Law (supra), a Will,
which is the last wish of the Testator and owner of the property
willed, should be respected. With regard to the
submission that the trial Court should have ordered that the 1st
and 4th Respondents provide the Appellants with another title
document in respect of the transaction, Their Lordships held that
because the Counter-claim of the Appellant did not
request for a relief to swap the property in issue, the trial Court
was unwilling to award what was not claimed. However, equity and
good conscience may justify such an award where there is
unconscionable conduct on the part of one of the parties with
respect to the transaction such as the 1st Respondent’s
unconscionable conduct in this case. TRENCO (NIG.) LTD. v AFRICAN
REAL ESTATE AND INVESTMENT CO. LTD & ANOR. (1978) 1 LRN 146 at
154. For the foregoing reasons, the Court dismissed
the appeal as it relates to the 2nd and 3rd Respondents, but
allowed the appeal with respect to the 1st Re- spondent on the
ground that equity and good con- science justify that the title
document of the property bequeathed to 1st Respondent be delivered
to the Appellants as replacement for the title document of the
property willed to the 2nd and 3rd Respondents.
Appeal Allowed in Part.
Representation: Mr. U.I. Obi and Mr. T.N.T.
Okonkwo for the Appel- lants. N. Okoli Esq. and Mr. O. Ogunlodoye
for the 1st to 3rd Respondent.
Reported by Optimum Publishers Limited
(Publishers of the Nigerian Monthly Law Reports
(NMLR))
Read more https://www.nairalaw.com/when-the-court-can-justifiably-award-reliefs-not-claimed-by-a-party/