MRS ABIMBOLA BOLANLE ABU
INTERCONTINENTAL HOMES SAVINGS & LOANS PLC
(Delivered By CHINWE EUGENIA IYIZOBA, JCA)
By a writ of summons and a statement of claim dated 28th day of August, 2009 the Appellant as claimant claimed against the Respondent as the 2nd defendant the following reliefs:
"A declaration that the tenor of the mortgage facility granted to the claimant towards the purchase of the property at 16, Lisabi Street, Off Pedro Road, Shomolu is August, 2015 and the 2nd defendant cannot abridge the time and act on the property without consultation with or consent of the claimant in her capacity as joint owner.
A declaration that the 2 defendant is a trustee for the claimant for the 36.37 percent contribution in the acquisition and processing of Governors consent in respect of the property lying being and situate at 16, Lisabi Street, Off Pedro Road, Shomolu, Lagos State.
An order restraining the 2nd defendant from exercising any unilateral power over the property at 16, Lisabi Street, off Pedro Road, Shomolu, Lagos State to the detriment of the claimant who is the joint owner of the property.
An order restraining the 2nd defendant acting by itself agent or privies or anyone acting through or under him from harassing the claimant in respect of the mortgage facility or initiating the sale of the property at 16, Lisabi Street, off Pedro Road, Shomolu, Lagos State in respect of which the facility was granted.
The Respondent filed a Statement of Defence and counter claimed against the Claimant as follows:
i. A declaration that by virtue of the Deed of Assignment dated 8th day of June 2009 and registered No. 48 at page 48 in Volume 2238 of the Land Registry office, Lagos, the 2Pd Defendant is the owner of the Statutory right of Occupancy in respect of the property at No. 16 Lisabi Street, Shomolu, Lagos State
ii. By virtue of the Ownership of the Defendant, the Defendant has the legal right to sell and pass title in the property to a third party.
iii. An order granting the 2nd Defendant vacant possession of the property at No. 16 Lisabi Street, Shomolu, Lagos State forthwith.
iv. The 2nd Defendant Claims the sum of Nl,000,000.00 Per Annum for use and occupation of the property from June 2008 until possession is given up.
ALTERNATIVELY TO PRAYERS I, II, III 4 IV ABOVE
v. An order directing the immediate payment of the sum of N9,323,361,35 being the outstanding balance payable on the property at No. 16 Lisabi Street, Shomolu, Lagos State as at 31st October, 2009.
vi. Cost of Defending this action conservatively assessed at N500, 000. OO as contained in offer letter containing terms and condition which the Claimant consented to. The 2 Defendant pleads paragraphs 3 under the other Terms and Conditions contained in the RE: OFFER dated 28th May 2008.
vii. Interest at the rate of 10% on judgment sum until final liquidation
At the trial the Appellant testified as CW1 and called no other witness. She tendered several documents as exhibits. The Respondent called one witness DW2 and also tendered several exhibits. Written addresses were ordered and duly adopted.
Femi-Adeniyi J. on 05/06/12 dismissed the Appellant's' claim in its entirety and also dismissed the Respondent's counter-claims (i), (ii), (iii) and (iv) and nonsuited the Respondent with respect to the alternative claims (v), (vi) and (vii).
The claimant being dissatisfied with the judgment appealed to this court by a Notice of Appeal dated the 14th day of June, 2012 containing five grounds of appeal. The parties filed and exchanged briefs of argument. The Appellant's brief was settled by Ademola Olowoyeye Esq. Therein he formulated two issues for determination as follows:
1. Whether having regard to the pleadings and the facts the trial court was right in construing the existence of only equitable mortgage transaction and upon the basis of that dismissing the reliefs sought by the appellant in its entirety Grounds 1, 2, 3, & 5 of the
Notice of Appeal.
2. Whether in the circumstance and having regard to the pleadings and the facts the Respondent ought to have been non suited in its claim-ground 4 of the Notice of Appeal
The Respondent's amended brief of argument was settled by Adeniyi Adebisi Esq. He also distilled two issues for determination as follows:
1. Whether the Defendant Counter Claimant proved its case and was entitled to be nonsuited with respect to alternative claims (v) (vi) and (vii)
2. Whether the Learned Judge correctly directed himself as to the onus of proof having regard to the pleadings and evidence before the court
Mr. Olowoyeye in the Appellant's Reply brief submitted and I agree that a Respondent may formulate his own issues but where there is no cross-appeal, the issues formulated by the Respondent must arise from the grounds of appeal filed by the Appellant. See UAC (NIG) Ltd v. GLOBAL TRANSPORT S.A (1996) 5 NWLR (Pt. 448) 291; ANIMASHA UN V. UNIVERSITY COLLEGE HOSPITAL (1996) 12 SCNJ 179; PRINCE OYESUNLE ALABI OGUNDARE & ANOR V. SHITTU LAOOKUN PGUNLOWO & ORS (1997) 5 SCNJ 281; PAO AW A V. JATAU (2003) 5 NWLR (PT. 813)247.
Ground 4 of the Appellant's Grounds of appeal and its particulars state:
"The learned trial Judge erred in law to have non-suited the respondent on the alternative claim (VI).
PARTICULARS OF ERROR
1. The respondent did not by his counter-claim aver any fact from which the appellant will be taken to have agreed to bear the sum claimed to defend the action and no facts were deposed to before the court.
2. The circumstances of non-suiting a claim not having arisen in the circumstances the claim ought to have been dismissed.
The complaint of the appellant is only in respect of the alternative claim VI. There was no complaint against the son-suit with respect to alternative claims (V) and (VII). The Respondent's issue 1 with respect to the alternative claims (V) and (VII) are consequently incompetent and are hereby struck out. I shall determine this appeal on the appellant's two issues,
On issue one, whether having regard to the pleadings and the facts the trial court was right in construing the existence of only an equitable mortgage transaction, Mr. Adebisi learned counsel for the Appellant summarized the judgment of the court under the issue and submitted that the learned trial judge erred in holding that an equitable mortgage arose out of the transaction between the parties. Counsel argued that the relationship was that of trustee/beneficiary. Counsel posited that the Appellant had the responsibility to pay back Respondent's contribution together with interest and that the Respondent had the responsibility to release any charge on the title document as soon as the payment due has been liquidated. Consequently, the Respondent in whose name the title is made is a trustee for the Appellant in respect of the contribution she made to own the property. Counsel referred to Anyaeobunam V. Osaka (1993) 5 NWLR (pt 294) 449,461 where Uwaif o JCA as he then was stated:
"In Beauty V. Guffenhein Exploration Company 225 NX 380 at 386 (1919), Cardozo J., said:- "A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest equity converts him into a trustee"
Learned counsel submitted that the intention of the parties in this case was not to create the usual and conventional mortgage and that the refusal of the learned trial judge to recognize the agreement of the parties when His Lordship held that "while this may be an unusual and unconventional way of creating a mortgage the transaction nonetheless qualifies as a mortgage transaction "was erroneous, as it amounted to the court making a contract for the parties. Counsel referred to the case of YARO V, AREWA CONSTRUCTION LIMITED & ANOR (2007) 17 NWLR (PT 1063) 333 AT 368
Counsel submitted that the letter of offer duly accepted by the appellant Exhibit D4A has many clauses with legal consequence; that the letter recognized the distinction between the facility and the security provided, but did not require any property to be charged as security. He opined that it only provided for the parties who put money together to buy a property to have the property transferred to one of them who provided a higher sum of money, and whose interest is limited to recovery of the principal and the interest over a period of 8 years. Counsel argued that by the contents of the letter, the Respondent was to provide a loan of N7m (Seven Million Naira Only) and the parties knew through a valuation report that the property was to be sold for NI0,000,000 (Ten Million Naira Only). He submitted that the parties knew they were jointly putting money together and that where the deed of assignment is made in the name of one of them that one in whose name it is made knew or ought to know that the property not having been bought wholly by it, the interest of the other party is charged to the title. It is a trustee for the other party to the extent to which it has provided money towards the purchase. Counsel further submitted that in the event of the need to sell, the parties become jointly responsible to sell and share proceeds in the proportion of contribution and or improvement. Counsel submitted that the learned trial judge ought to have recognized that the relationship of the parties ought not to be expressed only as an equitable mortgage transaction as other possibilities existed which are legally binding on the parties and constitute valid transactions. He urged us to resolve issue 1 in favour of the Appellant
On issue 2, whether in the circumstance and having regard to the pleadings and the facts the Respondent ought to have been non-suited, counsel submitted that the learned trial judge was in error to have non suited the Respondent on the alternative claim VI. Counsel argued that the claim is expressed as conservatively assessed at N500, 000.00 but that there was no averment in the pleadings to show how much was expended or agreed to be expended toward defending the action. Further, there were no facts in the witness statements of fact adopted by the defendant's witness relating to the relief. In other words, there were no facts upon which the claim could have been ventilated. Counsel submitted that it is a claim not supported by any fact and ought to have been deemed abandoned. He submitted that the learned trial judge was wrong to have non-suited the respondent in that claim. Counsel referred to several authorities and submitted that the claim ought to be dismissed or at least struck out. He urged us to resolve the 2nd issue in favour of the Appellant; to allow the appeal; set aside the judgment of the lower court and to grant the relief sought by the Appellant.
In reply to the Appellant's issue 1, learned counsel for the Respondent submitted that the Defendant in proving its case before the trial court led evidence of the fact that the Appellant signed the offer letter Exhibit D4A and also admitted collecting the facilities from the Respondent for the purpose of financing the purchase of the property situate at No, 16 Lisabi Street Shomolu, Lagos. She also admitted that she was to pay off the facility over a period of 84 months of which monthly re-payment was N198, 000.00 in respect of the interest element while quarterly in respect of the loan itself was put at N218, 000.00. The Appellant admitted paying the last installment in January 2009 when she paid N198, 000.00 only with no additional money paid till date. Counsel submitted that although the loan was to last until 2015, the inability of the Appellant to pay the monthly and quarterly repayment of the loan, abridged the time. Learned counsel relying on the case of Anambra State Housing Development Corporation V. Emekwe (1996) 1 NWLR (Pt 426) P505 where the Supreme Court held that a Statutory Corporation with authority to build houses and sell on terms to people was in some way a Mortgagee to the buyer whom the Court considered as Mortgagor entitled to retain equity of redemption; submitted that the relationship between the Appellant and Respondent is that of a mortgagor and a mortgagee, in the sense that the court is at liberty to infer a Mortgage relationship from an arrangement involving installment payment by an allottee of property in circumstances where it would be inequitable to revoke such allotment for failure to pay installments. Learned counsel contended that the act of writing to the Claimant informing her of the legal remedy available to the Defendant exercising its power as contained in the Exhibit D4A is a qualified act of consultation and consensual obligation that the Respondent owed the
Appellant in the glaring evidence of her inability to keep up to the repayment plan. He urged us to resolve issue 1 in favour of the Respondent.
On issue 2, learned counsel submitted that based on the evidence before the trial court, the learned judge was right in nonsuiting the Respondent on the alternative claim vi. Counsel contended that during the trial, the Respondent as Defendant was able to lead evidence that it was made to expend administrative charges due to the failure of the Appellant to keep to terms as contained in Exhibit D4A which made it a condition for the Appellant to bear any cost associated with instituting and defending any case in respect of the mortgage loan granted to her. Paragraphs 17 (VI) of the Witness Statement of Defence. Counsel submitted that the equitable relief of Trust sought by the Appellant cannot be tangentially different from equitable mortgage principle on which the trial court based its judgment. He posited that equitable reliefs cannot succeed unless the essential requirements for equitable remedies are met. He submitted that where a relief sought by the Plaintiff is an equitable one, he cannot succeed unless he meets with the essential requirements that he who seeks equity must do equity. He urged us to resolve issue 2 in favour of the Respondent and to dismiss the appeal as lacking in merit.
The issues to resolve in this appeal are not complex because the terms of the agreement are clearly spelt out in the letter of offer Exhibit D4A duly executed by the parties. The Appellant's contention at the lower court was that the tenor of the loan is 84 months from the date of acceptance of the offer and that the full payment and accrued interest would not be due until 2015, the date stated in Exhibit D4A. She further contended that she is a joint owner of the property and that the Respondent held the property in trust for her in respect of her 30% contribution to the purchase price. The property could not therefore be sold without consultation with her as joint owner. The Respondent on the other hand contended that the failure of the Appellant to meet up with the repayments as agreed led to a forfeiture of the expiration date of 2015; further that since the legal interest in the property is in the
Respondent, it has the right to sell the property as a consequence of the Appellant's default. The learned trial judge in his judgment at pages 250-251 observed:
" It is clear that there was indeed a mortgage transaction between the parties, in spite of the claimant counsel's argument that there was no mortgage deed executed, only an agreement to enter into a mortgage transaction.
It is a mandatory requirement of a legal mortgage that a deed of mortgage is executed by the parties to the mortgage agreement. In the absence of such a deed, what is granted would be a mere equitable mortgage. An equitable mortgage would arise in a situation where there is both a deposit of the title documents as well as a written agreement stating that the deposit of the title documents is as collateral for securing a loan. In Ogundiani v. Araba (1978) 6-7 SC 42, the Supreme Court held that
'equitable mortgages are created inter alia, (1) by mere deposit of Title Deeds with a clear intention that the deeds should be taken or retained as security for the loan; (2) by an agreement to create a legal mortgage and
(3) by mere equitable charge of the mortgagors property."
In exhibit D4A, the parties clearly agreed that the purposes of the mortgage facility was for the purchase of property at No. 16, Lisabi Street, Shomolu, Lagos State and one of the conditions precedent to drawdown of the facility was a purchase instruction from the Claimant that the property was to be purchased in the name of the defendant. This was done and evidenced by the execution of the deed of assignment transferring the property from the original owner (Pamco Nig. Ltd) to the defendant (exhibit D4B)
While this may be an unusual and unconventional way of creating a mortgage, the transaction nonetheless qualifies as a mortgage transaction. A legal mortgage would involve the mortgagor passing title to the mortgaged property to the mortgagee and a reconveyance after the mortgage loan is paid off, while for the creation of an equitable mortgage a deposit of the title documents for a loan is sufficient. See Yaro v. Arewa Const. Ltd. (2007) 17 NWLR (Pt. 1063) 333, where an equitable mortgage was defined as "an agreement that has arisen out of the deposit of the mortgagor's title deed with the mortgagee for loan as security. The essence of an equitable mortgage by the deposit of title deed is an agreement, between parties concerned, followed by an act of part performance. "
DW1 admitted that the property was purchased on behalf of the claimant. Thus, exhibit D4A together with the deed of assignment (exhibit D4BJ in the custody of the defendant firmly places the transaction between the parties in the realm of a mortgage transaction. There is therefore no doubt in my mind that the transaction was indeed intended to be and was in fact a mortgage transaction where for reasons best known to the parties the deed of assignment was made in the name of the defendant."
The reasoning of the learned trial judge to my mind is sound. The Appellant's argument that the Respondent is holding the property in trust for her is not supported by the facts of the transaction. An example of an implied trust (as cited by the learned trial judge) given by Professor G. W. Keeton, in his book "The Law of Trusts, 8th Ed. (1963) at page 143 is this:
"The best example of a trust implied by law is where a property is purchased by A in the name of B that is to say, A supplies the purchase money, and B, takes the conveyance. Here, in the absence of any explanation, facts such as an intention to give the property to B, equity presumes that A intended B to hold the property in trust for him."
From the agreement between the parties Exhibit D4A, facts of an implied trust are nonexistent. The Appellant provided only 30% of the purchase price. 70% was provided by the Respondent. It was clear from Exhibit D4A that the property was bought for the Appellant but in order to guarantee the repayment of the loan and interest, it was agreed that the property be bought in the name of the Respondent. The intention being that as soon as the loan and interest is paid back, the property will be re-conveyed to the
Appellant. It surely sounds more like a mortgage than a trust. The case of Anyaegbunam V. Osaka (1993) 5 NWLR (pt 294) 449.461 which the appellant relied on in support of her claim that the Respondent is a trustee is consequently inapposite. Equity cannot deem the Respondent a trustee for the Appellant when she owes the appellant 70% of the money expended in purchasing the property. The Appellant and the Respondent did not come together and agree to contribute money to purchase the property. Contrary to the submissions of learned counsel for the Appellant, the terms of Exhibit D4A are quite explicit that the Respondent is the lender and the Appellant the borrower. The facility was indicated to be a mortgage, amount borrowed N7, 000,000.00; tenor 84 months; Purpose, to finance the purchase of a property located at Lisabi Street, Off Pedro Road, Shomolu, Lagos. The security for the loan is the title to the property located at Lisabi Street, Off Pedro Road, Shomolu, Lagos. The facts are there in black and white. Learned counsel for the Appellant apparently opted to shut his eyes to the clear terms of Exhibit D4A.
A legal mortgage is a document in which the owner (mortgagor) pledges his title to real property to a lender (mortgagee) as security for a loan. It transfers legal title to the mortgagee and prevents the mortgagor from dealing with the mortgaged asset while it is subject to the mortgage. The Supreme Court per Chukwuma-Eneh JSC in the case of Adetona & Anor v Zenith Bank PLC stated:
"It is necessary here to start with examining firstly the meaning of mortgage as I accept its definition as per of Bank of the North v. Bella  7 NWLR (Pt. 664) 244 to the effect that: A mortgage is... the creation of an interest in property defeasible (i.e. annullable) upon performing the condition of paying a given sum of money with interest at a certain time. The legal consequence of the definition is that the owner of the mortgaged property becomes divested of the right to dispose of it until he has secured a release of the property from the mortgagee.' In other words in a proper mortgage the title of the property must have been transferred to the mortgagee, subject to the proviso of the mortgaged property being reconveyed by the mortgagee to the mortgagor upon performing the condition stipulated in the mortgage deed and invariably upon payment of the debt at the time so stipulated in the Deed of Mortgage. The mortgagor is liable to repay the loan as stipulated otherwise the mortgaged property is foreclosed."
The transaction between the Appellant and the Respondent while it has all the incidents of a mortgage is not a legal mortgage because no deed of mortgage was executed. In the case of Yaro v Arewa Constuction Ltd & Ors (2007) LPELR-SC213/2000, the SC per Chukwuma-Eneh JSC observed:
"It is settled law that the deposit of title deeds with a bank as security for a loan creates an equitable mortgage as against a legal mortgage which is created by deed transferring the legal estate to the mortgagee. See Ogundiani v Araba & Anor (1978) 6-7(Reprint) 42; (1978) NCCC (Vol. 11) 55. An important feature of mortgages both legal and equitable is that once a mortgage always a mortgage and nothing but a mortgage. See Adjei v Dabanka (1930) 1 WACA 63 at 67: Kadiri v. Olusaga (1956) 1F5C& Bank of New South Wales v. O'Conor (1889) 14 AC 273."
It is quite obvious then that the trial judge was right in construing the transaction as an equitable mortgage. Instead of the deposit of the Appellant's title deed as would have been the case in an ordinary equitable mortgage, the property was actually assigned to the Respondent. But DW1 the sole witness called by the Respondent admitted that the property was purchased on behalf of the Appellant. The offer letter Exhibit D4A together with the deed of assignment of the property to the Respondent Exhibit D4B place the transaction squarely in the realm of a mortgage transaction. The peculiar arrangement of the assignment* of the property to the Respondent does not detract from the fact that the transaction is indeed a mortgage. This conclusion is fully supported by the terms of Exhibit D4A. Learned counsel for the Appellant was wrong to contend that the learned trial judge by his conclusion that the transaction was an equitable mortgage created a new contract for the parties. Learned counsel for the Appellant had further contended that in the event of the need to sell, the parties become jointly responsible to sell and share proceeds in the proportion of contribution and or improvement. This argument is again misconceived and runs counter to the terms of Exhibit D4A. Counsel clearly closed his eyes to the fact that the Exhibit specifically provided that the Respondent's contribution was a loan to the Appellant repayable with interest. If they are to sell and share the proceeds in the proportion of the contribution and or improvement, what happens to the accrued interest? The arguments of learned counsel for the Appellant are clearly misconceived and unsupportable. The conclusion of the learned trial judge that the maxim once a mortgage always a mortgage' would operate to defeat both the Appellant's claim that she is a joint ownerof the property and the Respondent's claim that it is the owner of the property is absolutely correct.
In the circumstances, the interest the Appellant has in the property is her equity of redemption. Until she pays off the loan and interest thereon, she cannot recover the property. The learned trial Judge was right in rejecting the contention of the Appellant that the loan was for a period of 84 months due to mature in 2015. Once the appellant defaulted in repaying the loan and interest as at and when due, the debt crystallized and became immediately payable. Clause 5 of Other Terms and Conditions of Exhibit D4A at page 70 of the printed records spelt this out:
"In the event of a default in the payment of the facility or in the payment of interest arising thereon or in the performance of the terms, conditions and covenants contained herein, the company reserves the right without notice to the Borrower, to call in the facility and demand immediate repayment of all outstanding on the facility and to realize the security pledged for the facility either by public auction or private treaty through an agent strictly appointed by the bank."
The Respondent was consequently right in relying on the above provision to request for outstanding past due amounts on the loan in exhibits D4C and D4D. The trial judge was right in construing the transaction as an equitable mortgage and in dismissing all the claims of the Appellant. Issue 1 is resolved against the Appellant,
Appellant's complaint on issue 2 is that the lower court ought to have dismissed or struck out Relief VI of the Alternative reliefs instead of non-suiting the Respondent because there was no averment in the pleadings to show how much was expended or agreed to be expended toward defending the action. Further, that there were no facts in the witness statements of fact adopted by the defendant's witness relating to the relief. Learned counsel for the appellant again misconstrued the true position of things. In paragraph 17 (VI) of the witness deposition of the Respondent at page 68 of the printed record, the witness prayed for:
"Cost of defending this action conservatively assessed at N500, 000.00 as contained in offer letter containing terms and condition which the Claimant consented to. The 2nd Defendant pleads paragraph 3 under the other Terms and Conditions contained in the 'RE: OFFER OF N7, 000,000.00 1-ME MORTGAGE FACILITY dated 28th May 2008."
The document referred to above is Exhibit D4A. In paragraph 3 of Other Terms and Conditions of the said Exhibit D4A at page 70 of the printed Record, it was stated that all fees and out of pocket expenses including legal fees incurred in the completion of documentation relating to the facility or the recovery of the facility shall be borne by the borrower. The Appellant who was the borrower duly executed Exhibit D4A and is bound by its terms. Although the precise amount of the legal fees was not pleaded, there was sufficient pleading regarding the obligation of the Appellant to be responsible for the legal fees. Besides at the point of preparation of the pleadings, it may not be possible to know precisely how much the legal fees will amount to. Besides, the fact that N500, 000.00 was claimed does not mean that the amount must be awarded by the court. The Respondent by executing the agreement Exhibit D4A bound herself to pay the legal fees for recovery of the debt. The matter was duly pleaded. Given the terms of the agreement and the deposition of the witness, it would be unfair to dismiss or strike out relief VI. In the case of Efetiroroje v Okpalefe 11 (1991) 5 NWLR (Pt. 193) 517. the SC per Karibi-Whyte JSC restated the well settled principles for ordering non-suit. These are (a) where the plaintiff has not failed in toto or entirely to prove his case; and (b) where the defendant is not in any event entitled to the court's judgment; and (c) where no wrong or injustice to the defendant would be caused by such order. All the factors are satisfied in the present case. The learned trial judge was right in non-suiting the Respondent on that relief. Issue 2 is also resolved against the Appellant. Having resolved all the issues against the Appellant, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of
Femi-Adeniyi J of the High Court of Lagos State, Lagos Judicial Division delivered on the 5th day of June 2012 is affirmed. I make no order as to costs
JOSEPH SHAGBAOR IKYEGH. J.C.A. I agree with the judgment prepared by my learned brother, Chinwe Eugenia lyizoba, J.C.A., which I had the honour of reading in print.
YARGATA BYENCHIT NIMPAR I had the privilege of reading the judgment just delivered by my learned brother, CHINWE EUGENIA IYIZOBA, JCA in advance and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment.
I have nothing more to add. I also dismiss the appeal and abide by the orders made in the lead judgment.
ADEMOLA OLOWOYEYE ESQ with ADERONKE ADEMETAN (MISS) for the APPELLANT
ADENIYI ADEBISI ESQ for the RESPONDENT