CORAM
JOHN INYANG OKORO JUSTICE OF THE SUPREME COURT OF NIGERIA
PARTIES
1. MORTGAGES PHB LTD2. KEYSTONE BANK LTD
1. DR OLADIPO OLASIMBO2. MRS. OLARONKE TAIWO3. ENGINEER KAMARUDEEN OLASIMBO4. MR. TOLA OLASIMBO5. SUPREME IN GLORY TREASURES NIG. LTD.
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st – 3rd Respondents are children of late Dr. Olanrewaju Olasimbo, the 4th Respondent is the son of the 1st Respondent while the 5th Respondent is a company owned by the 1st Respondent. Dr. Olanrewaju Olasimbo died in 1993, his will gave the effective date of operation, 10 years after his death or after the education of the children listed in the will, whichever came first. The 4th Respondent obtained a loan from the Appellants guaranteed by the 1st Respondent through the deposit of title document (deed of indenture) in respect of property located at No. 30 Olatunde Ayoola Street, Off Ikorodu Road Lagos. The loan accumulated to N44, 084,988.45 when due. The 4th Respondent defaulted in repaying the loan and the Appellants took steps to exercise their right of sale of the mortgaged property. The 1st – 3rd Respondents sued the Appellants alleging that the mortgaged property belongs to the 2nd Respondent by virtue of the will made by their late father. The High Court below agreed with the 1st – 3rd Respondents and gave judgment ordering the Appellants to return the deed of indenture or title document to the 1st – 3rd Respondents. The court below however found the 1st, 4th and 5th Respondents liable to the Appellants for the indebtedness per the Appellants’ counter-claim, but it did not order the 1st, 4th and 5th Respondents to deposit another title document in place of the one ordered to be returned to the 1st – 3rd Respondents; occasioning the appeal.
HELD
Appeal Dismissed In Part/Allowed In Part
ISSUES
None
RATIONES DECIDENDI
INVESTIGATION OF TITLE DOCUMENT – DUTY ON A PARTY INVESTIGATING TITLE DOCUMENT
“The duty on the person investigating title is to take care. It does not require him to take a chance vide Imana v. Robinson (supra). Nor does it require the person to be omniscience or a detective.” –
INVESTIGATION OF TITLE DOCUMENT – ROLE OF EQUITY IN THE INVESTIGATION OF TITLE DOCUMENT
“The title document, deed of indenture, presented by the 1st respondent bore the same name as the 1st respondent gave in the memorandum of tripartite mortgage agreement. The opportunity of investigation to ascertain the inaccuracy of the title document whether made inefficiently or negligently no longer applied. It relieved the other side from making an investigation, even if the opportunity is afforded. Equity comes to the rescue at that stage vide Imana v. Robinson (1979) 12 N.S.C.C. 1 at 19.” –
EVIDENCE – STATUS OF EVIDENCE UNSUPPORTED BY MATERIAL FACTS
“Address of counsel and evidence unsupported by such material facts in the pleadings must be disregarded vide Buraimoh v. Bamgbose (1989) 3 NWLR (pt. 109) 352 at 365.” –
WILL – A WILL SHOULD BE RESPECTED
“Because a will is the last wish of the testator and owner of the property willed. It should be respected. See section 42 of the Administration of Estate Law (supra) Nweke v. Nweke (supra).” –
RELIEF – WHETHER COURT WILL AWARD RELIEFS NOT CLAIMED
“I agree that the counter-claim earlier referred to did not request for a relief to swap the property willed to the 1st respondent by his late father for the title document of the 2nd – 3rd respondents used for the mortgaged property. 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 vide the Supreme Court case of Trenco (Nigeria) Ltd. v. African Real Estate and Investment Co. Ltd. and Anor. (1978) 1 LRN 146 at 154 per the judgment of the Court read by Aniagolu, J.S.C., (now of blessed memory) thus –
“For this court to allow the first defendants to get away with it would amount to yielding to what amounts to constructive fraud, which term is clearly explained in Nocton v. Lord Ashburton (1914) AC 932. It is a case in which this court, acting as a court of conscience, must prevent the plaintiffs from suffering pecuniary injury against the dictates of conscience. At p 952, Lord Haldane, in developing this doctrine of constructive fraud, stated:
‘But in addition to this concurrent jurisdiction, the Court of Chancery exercised an exclusive jurisdiction in cases which, although classified in that court as cases of fraud, yet did not necessarily impart the element of dolus malus. The court took upon itself to prevent a man from acting against the dictates of his conscience as defined by the court, and to grant injunctions in anticipation of injury, as well as relief where injury has been done’.” (My emphasis).
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CASES CITED
Not Available
STATUTES REFERRED TO
Administration of Estate Law Cap. 3 Laws of Lagos State, 1962|