CORAM

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO FHC

OLAJIDE OLATAWURA., JUSTICE, SUPREME COURT

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO FHC

O. OLATAWURA JUSTICE, SUPREME COURT

A.I. IGUH

PARTIES

K.A. ONAMADEYEKINI ADE AGBAJE APPELLANTS

AFRICAN CONTINENTAL BANK LTD RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

PROPERTY LAW, LEGAL MORTGAGE, ESTOPPEL, APPLICABLE LAW, APPEAL
SUMMARY OF FACTS
The plaintiff/appellant took a loan from the defendant/respondent and using his property to facilitate the legal mortgae. The 2nd plaintiff paid for the outstanding sum and was to be given the property documents. After cashing the cheque, the defendant refused to sign the Deed of release. On this point the plaintiff sued. Trial Court found in favour of the defendant, Court of Appeal dismissed the appeal. Still dissatisfied he has appealed to this Court.

HELD

All the issues having been resolved against the appellants, this appeal fails and it is hereby dismissed with costs to the respondent against the appellants which I assess and fix at N1000.00.

ISSUES

1. Whether the appellants have not made out a case entitling them to succeed on the issue of estoppel raised for preliminary decision in paragraphs 2 and 3 of the Reply to Statement of Defence. 2. Whether the learned Justices of the Court of Appeal were right in confirming the judgment of the learned trial judge that Exhibit C is in clear contravention of Land Use Act by virtue of section 22 and is null and void and that the respondent is not precluded from raising the illegality of the document in answer to the plaintiffs’ claims when the respondent is making unconscionable use of the Land Use Act.Arising from these 2 main issues are subsidiary issues namely. (a) Whether it was proper to allow the issue of illegality of Exhibit C to be raised by the respondent while respondent’s approval to the transaction was being sought and had not yet been given by the respondent and the respondent did not raise it until after it had been sued. (b) Whether the respondent with knowledge that consent of Military Governor was necessary was right in not applying for the consent and in insisting that the mortgage must be discharged and documents released to 1st appellant with knowledge of 2nd appellant’s interest. (c) Whether or not the learned trial judge as well as the learned Justices of the Court of Appeal erred in holding that Form of Release LUD (Ch3) relied upon by the respondent is the proper document to be signed as opposed to Exhibit C having regard to the fact that the person paying-off the mortgage debt is not the mortgagor but somebody who wants the mortgage to be kept alive for his benefit and the mortgagor had given this indication to the respondent. 3. Whether or not the learned Justices of the Court of Appeal erred in holding that arguments proffered in reply to points raised by way of objection to the application by respondent or against the conclusions of the learned trial judge on legal consequences of an act should be pleaded. 4. Whether the release of documents while the case was on appeal has put an end to appellants’ claim for damages when the issue of respondent’s liability for detinue for refusal to surrender the documents has not been considered and determined. 5. Whether the learned trial judge was not in error in dismissing the appellants’ claims without hearing evidence when the plaintiffs’ cause of action is refusal to execute Exhibit C and to surrender the let appellant’s title deed to 2nd appellant where it was the respondent who was acting unreasonably by its insistence on FORM LUD (Ch3).

RATIONES DECIDENDI

CASES CITED

Lemboye v. Ogunsiji [19901 6 N.W.L.R. (Part 155) 210 at 232Aiibade v. Pedro [1992] 5 N.W.L.R. (Part 241) 257Are v. Ipaye [1986] 3 N.W.L.R. (Part 29) 416 at 418.Davey Bros v. Garrett (1878) 7 Ch. D 499 United Africa Co. Ltd. v. Taylor (1936) 2 WACA 70 at 71 Usenfowokan v. Idowu and Salami (1969) 1 NMLR 77 at 81.The Attorney-General of Bendel State v. The Attorney-General of the Federation and others (1981)3 NCLR 1;(1981)1 All NLR. (Part 2) 1 at 82 – 83

STATUTES REFERRED TO

Land Use Act, 1978|Property and Conveyancing Law of Oyo State, 1978|

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