Adegboyega Okusanya & Ors. V. Mrs Gbeminiyi Ogunfowora (1997)
LawGlobal-Hub Lead Judgment Report
MUKHTAR, J.C.A.
As per writ of summons dated 20/1/83 the respondent in this appeal initiated a suit against the appellants for the following claims:-
- Declaration that the following deeds belonging to the plaintiff hitherto held in possession by the defendants are wrongfully detained and should be returned to the plaintiff:-
(a) Deed of lease registered as No.5 at page 5 in volume 378 of the lands registry in the office at Ibadan, in respect of leasehold property at SW8/290 Oke-Ado, Ibadan dated 27/7/60.
(b) Deed of conveyance registered as No. 45 at page 45 in volume 1169 of the Lands Registry, in the office at Ibadan, in respect of freehold landed property at Agbowo Area, Near U.I. Ibadan dated 16/12/69.
(c) Deed of conveyance of freehold property registered in Lagos Land Registry covered by Land Certificate No. 1332 dated 9/11/59
- N8,000.00 …….. being general damages suffered by the plaintiff for the continued wrongful detention of the said Deeds inspite of plaintiff’s repeated demands.
The parties on the order of the Court exchanged pleadings to wit they were settled at further amended statements of claim and defence.
At the instance of the 1st defendant’s father Bishop Okusanya, the respondent handed over three deeds of her properties to be used as securities for short term over-draft facilities by the 1st defendant from the 3rd defendant. The respondent alleged that she signed some documents of contract of guarantee of which her above stated properties were involved under undue influence. She demanded the deeds of the properties from September, 1979, but they were not returned to her, so she instituted this action.
The 3rd appellant denied that the respondent was induced by them to allow the 2nd appellant the use of her properties as security to secure loan from them. As at January, 1983 the amount owed by the 2nd appellant is N668,027.66, and unless the debt is liquidated by it the documents of the properties will not be released as it is rightfully and lawfully detained.
Parties adduced evidence which were evaluated by the learned Judge who heard the case, and at the end of the day found in favour of the plaintiff/respondent and granted some of the reliefs she sought. Dissatisfied with the judgment the appellant/defendants appealed to this Court originally on 8 grounds of appeal as is contained in the original notice of appeal, which was later amended by the order of this court of 28/4/94. In the application seeking the amendment all the grounds with the exception of only ground (2) were sought to be deleted and four new grounds substituted them. The amended notice was filed on 7/3/94. In compliance with Order 6 of the Court’s Rules, 1981 as amended briefs, of argument were exchanged by the parties, and they were duly adopted at the hearing of the appeal. Six issues for determination were formulated by learned counsel for the appellants in their brief of argument, whereas four were formulated in the respondent’s brief. I will however adopt those in the respondent’s brief, as I find them more comprehensive and neater. The issues read:-
- Whether the plaintiff’s deed of conveyance registered as No. 45 at page 45 in Volume 1169 of the land registry at Ibadan dated 16/12/69 and deed of conveyance registered as No. M.O. 1332 at the Lagos Land Registry dated 9/11/59 were wrongfully detained by the 3rd defendant.
- Whether Exhibit ‘G’ is valid as a deed of mortgage in respect of the property contained in Exhibit E and F respectively.
- Whether the respondent is still liable to any amount the 1st and 2nd defendants are owing the 3rd defendant in respect of Account Nos. FC/976 and FC/977.
- Whether the N3,000.000 (three thousand naira) damages awarded is untenable and excessive.
I will take the first three issues together. It is on record that the respondent was a guarantor for the 2nd appellant in respect of loan facilities availed to it by the 3rd appellant and for which she deposited the deeds of her properties. In the further amended statement of claim was averred the following:-
- Plaintiff was induced to enter into the contract of guarantee by certain material misrepresentations of existing facts made by the 3rd defendant, to wit:-
1.
2.
- The periodic statement of account of dealings between the defendants would be forwarded to the plaintiff.
- That overdraft facilities to be enjoyed by the 1st defendant as Managing Director of the 2nd defendant Company would not exceeded N15,000 under the security.
- That the 1st defendant maintain only one account No. FC976 with a debit balance of about N1,168.00 but not above N1,200.00 wit the 3rd defendant bank at the material time.
These averments were denied by the 3rd appellant in paragraphs 11 – 13A of its further amended statement of defence and in paragraph (7) of the said defence was averred thus:-
- The 2nd defendant became a customer of the 3rd defendant in March 1973, when the 2nd defendant opened an account No. FC977 with the 3rd defendant.
Now, the respondent gave evidence in support of the above averments inter alia and denied knowledge of 2nd defendant’s account No. FC977 when she signed the three legal mortgage deeds in the 3rd appellant’s office. In her examination in Chief the respondent testified inter alia thus:-
“I did not see the Bishop again until sometime later in 1975 when he asked me to follow him to the Cooperative Bank and I did. The Bank Manager gave me three documents related to Exhibits A, C and E which I earlier gave to Bishop Okusanya.”
Under cross-examination she however admitted that she was aware of account No: FC977 vide Exh. ‘K’ which she caused to be written to the 3rd appellant. It will be most helpful to reproduce the content of Exh. K. It is dated 28th October, 1974 and reads, inter alia:-
”’Conveyance No. 5/5/378/Ibadan
The above conveyance was formerly pledged with my account No. 2293 long ago and subsequently proposed for cleric (Nig.) Ltd. F/C977 account having forgotten about the first pledge. As a result we felt the original was lost, and therefore went through pains to get the true certified copy.”
Now this request is to release this document from Account 2293 balance of which is about N920.00 and which is steadily being reduced monthly secure the account of Cleric (Nig.) Ltd. FC/977.
Yours faithfully,
G. Ogunfowora.”
Now, this letter was written on 28/10/74, and as is stated in the respondent’s evidence she went to sign the legal mortgages sometime in 1975. How can she then feign ignorance of the existence of account No. FC977, when in fact as far back as October, 1974 she had specifically requested that one of the properties mortgaged should be transferred to secure the said account of the 2nd appellant? Definitely, the respondent has either not been honest with herself or has deliberately set out to mislead or deceive the court. In fact that aspect of her evidence watered down her evidence and was liable to effect the credibility of her overall evidence. It is therefore indisputably on record that she was very much aware of the existence of the two accounts i.e. Nos FC976 and 977 before she signed the legal mortgage and even before she surrendered the deeds. That conveyance No. 5/5/378 Ibadan was not used as security in respect of Account No. FC977 is misleading and unacceptable, as Exh. ‘K’ speaks for itself, for the evidence is glaring and so very reliable.
On the connection of the two accounts i.e. Accounts Nos. F/C976 and F/C977 with the properties used as security, I think the evidence of DW1 will suffice to establish the connection. In his examination in chief he testified inter alia as follows:-
“The plaintiff is also our customer. She signed legal mortgage to secure loans granted the 2nd defendant, in my presence and I witnessed her signature. The 2nd defendant maintains two accounts with us. The number of the first account is F/C977 and the second one is F/C976.”
As to the particular account related to the securities, perhaps a careful examination of the second paragraph of Exh. ‘N1’ will provide some insight into what each of the two accounts stand for and the one most likely to be involved in the heavy loans. The relevant portion of the paragraph states:-
“As it is, you are aware that we control the two accounts referred to above. Since the decision not to allow us to operate account F/C977 until we repay the generous advance we have used for paying for the recent bulk of goods we purchased, we have more or less been using the other account F/C976, to meet our running costs which include things like Petty Cash, Rent on office premises, Travelling expenses ….”
Then, still bearing the above in mind one reads in Exh. ‘N3’ (an application for further extension of overdraft facilities of N34,000.00) that, “to support our application for further facilities ……. We have surrendered the following securities:
- A bungalow with a large garden and yard at No.5 Akerele Road, Surulere, Lagos. Valued at N25,000.00.
It is instructive to note that the property is the one claimed under C in the writ of summons reproduced supra. Again one can see account No. F/C977 reflected in the subject matter of an overdraft facilities. My view is that all the above signify a consistent operation of, and concentration more on account No. F/C977 than FC/976 to wit even the respondent confirmed in Exh. K.
On the wrongful detention of Exhibit ‘A’ and ‘E’ alleged by the respondent, I agree with the contention that the documents were voluntarily parted with by the respondent as mortgages to secure debt owed by the 2nd defendant and which debt the 2nd defendant has not paid. However, on the validity of the legal mortgage Exh. ‘G’. I will now consider the relevant paragraphs of the respondent’s pleading on the document, which reads:-
“10(3) The third transaction as per the date of execution of the legal mortgage inserted thereon involved plaintiffs free-hold land including the building thereon lying, being and situate at Itire Road, Surulere, Lagos covered by a Deed of Release dated 2/11/74 registered as Title No. MO 1332 Lagos Land Registry. The purported legal mortgage thereof to the 3rd defendants was deposited in the Lagos Registry by the 3rd defendant the date of execution being 3/4/79.
The Assistant Investigation Officer at the Lagos State Land Registry tendered the document referred to above of which he testified inter alia that:-
There is nothing on record showing that the prior approval of the Military Governor of Lagos State had been obtained before Exhibit ‘G’ was deposited at the Lagos Registry.”
The under cross-examination:
“If there is an oversight a defective deed might be registered in my Registry or the Registrar of Titles relies on section 25 of Land Registration Law of Lagos State, Cap. 64. Vol. IV Laws of Lagos State, 1973, which provides that the registration of any deed does not cure any defect in the deed.”
The crux of the respondent’s case is that the consent of the Military Governor as required by Section (22) and (26) of the Land Use Act of 1978 which stipulates thus was not obtained.
“(22) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment mortgage, transfer of possession sublease or otherwise howsoever without the consent of the Governor first had and obtained.
(26) Any transaction or any instrument which purports to confer on or vest in any person interest or right over and other than in accordance with the provisions of this act shall be null and void.”
The above provisions of the law are very explicit, and indeed apt to the position of the case at hand.
It is quite clear that nothing can cure the defect of non-consent of the Governor, Lagos State in this case, the fact that the respondent intended the document as a mortgage notwithstanding. The cases of Prince S.B. Godwin v. H.A. Paris & Anor. (1943) 9 WACA 44 and Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) page 305 cited by learned Counsel for the respondent are illuminating and of assistance. The following statement of the learned trial Judge is to my mind correct.”
I am therefore not satisfied that Exhibit ‘G’ had received the prior consent of the Governor of Lagos State before its execution and so it is null and void under section 22 and 26 of the Land Use Act, 1978.”
As far as Exh. ‘B’ is concerned I have not seen where the learned trial Judge analysed or dealt with its validity in the judgment, as he did of Exh. ‘G’. In other words, the reason for declaring it null and void has not been expressed or specified by the learned Judge, even though at the end of the day he pronounced on page 75 of the printed record thus:-
“For the reasons already given above the contracts in Exhibit B and D are hereby declared null and void.”
I will not at any rate dwell unnecessarily on this, for learned Counsel for the appellant has not made it a ground of appeal. I just thought I will mention it in passing. For the foregoing reasoning my answers to the issues are in the negative. Their related grounds of appeal fail.
The appellant’s quarrel on the last issue formulated is the excessiveness of the damages of N3,000 awarded to the respondent which learned Counsel says is not tenable in law. Learned Counsel has set out the principles upon which an appellate court will review an award of damages, and relied on the cases of Agaha v. Otuhusi (1961) 1 ANLR 299; (1961) 2 SCNLR 13; Kwaham v. Chellarams (Nig.) Ltd. (1964)1 WLR 711 amongst others. Learned counsel for the respondent has however argued that the damage awarded is not excessive as the learned Judge considered the case of both sides. She placed reliance on the case of Zik Press Ltd. v. Alvanlkoku (1951) 13 WACA 188. I fully subscribe to this argument for the learned Judge considered relevant factors before arriving at the amount he awarded. It is trite that an appellate court will not interfere with the award of damages, once it is satisfied that the right principle of law was applied, the award is neither ridiculously low or high and the amount awarded is not unreasonable, punitive and excessive. See: Mills v. Stanway Coaches Ltd. (1940) 2 KB 334 and Owen v. Sykes (1936) 1 KB 192. In the circumstances I find no such inadequacy to warrant the distrubance of the award of the damages of the lower court by this court. The answer to this issue is thus in the negative and so the related grounds of appeal fail.
The end result is that the appeal fails. The judgment of the lower court is hereby affirmed. I make no order as to costs, in view of the nature of the case.
Other Citations: (1997)LCN/0254(CA)
