⦿ CASE SUMMARY OF:
Osakpamwan Ogiorio v. Miss Doris Igbinovia (1998) – CA
by PipAr Chima
Court of Appeal
⦿ NOTABLE DICTA
* ISSUE MUST ARISE FROM A GROUND OF APPEAL
It is trite law that an issue for determination in an appeal must relate to and arise from the grounds of appeal filed. Therefore any issue which is not related to any ground of appeal is not only vague but also incompetent and liable to be ignored in the determination of the appeal or struck out. – Mahmud JSC Ogiorio v. Igbinovia (1998)
* WHERE LOWER COURT FINDINGS WILL BE SET ASIDE
Although appellate courts are very slow and reluctant in interfering with the findings of fact by the trial lower courts, nevertheless where such findings are not borne out by conclusive or positive evidence, or where the lower court did not properly evaluate the evidence before making the findings or where the lower court failed to apply the law properly to the facts proved, the appellate courts are under a duty to interfere with such findings. To neglect to do so will certainly occasion a miscarriage of justice sufficient to warrant a superior appellate court to interfere with the trial court’s findings. – Mahmud JCA. Ogiorio v. Igbinovia (1998)
Miss Doris Igbinovia
⦿ LEAD JUDGEMENT DELIVERED BY:
Mahmud Mohammed, JCA.
* FOR THE APPELLANT
– P.O. Osemwankhai.
* FOR THE RESPONDENT
– A.A. Omorodion.
⦿ CASE HISTORY
On 1-3-92, the appellant approached the respondent who is a registered moneylender and asked for the loan of N 100,000.00 The respondent granted the loan without charging any interest but in return received the appellant’s title deeds to his property, a house described as No. 37, Palace Road, Edigin Quarters, Use, Benin City as security for the repayment of the loan for which a written agreement was executed by the parties. The agreement provided that the loan shall be repaid on or before 31-3-93 failing which the lender being the respondent shall without notice to the borrower, the appellant, sell or appropriate the property by which the loan was secured or deal with it as the respondent deems appropriate. When the appellant failed to repay the loan as agreed on 31-3-93, the respondent gave him notice to vacate the property for her which she claimed had become her property by virtue of the agreement. The parties were before the lower court in two separate suits which were later consolidated in their quest to have the dispute resolved. The lower court resolved the dispute in favour of the respondent in its judgment of 28-7-95 which gave rise to the present appeal.
⦿ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED, WITH N2,000 AGAINST THE RESPONDENT]
1. Whether on the totality of the evidence led, the learned trial Judge was right in declaring/holding that the appellant had forfeited his house, the property pledged/mortgaged?
i. It is quite clear from Exhibit ‘D1’ that it was prepared for and was executed by the appellant described as the “borrower” and the respondent who was described as the “lender”. The agreement is for a loan of N 100,000.00 granted by the respondent to the appellant who surrendered the title deeds of his house No. 37, Palace Road, Edigin Quarters, Use, Benin City as security to ensure the repayment of the loan on 31-3-93. Therefore, this agreement is not a conditional sale agreement as was the case in Seidu Olowu v. Miller Brothers Ltd (1911) 3 NLR 110 heavily relied upon by the respondent where Messrs Miller Brothers (of Liverpool) Ltd were described as “the purchasers” and the agreement construed as ordinary purchase deed. Close examination of Exhibit DL reveals quite clearly that apart from the fact that the loan granted was interest free, it contains all the provisions of a legal mortgage and therefore it is essentially a deed of a legal mortgage between the appellant and the respondent. For this reason, all the requirements of a legal mortgage must apply to the enforcement of the agreement between the parties.
ii. The lower court was of course wrong in granting the respondent’s reliefs having regard to the fact that the transaction between the appellant and the respondent contained in Exhibit ‘D1’ is indeed essentially a mortgage under which the appellant’s right to redeem his property the subject matter of the mortgage cannot be taken away from him even by the express agreement of the parties as contained in clauses 3, 4, 5, 6 and 7 of Exhibit “Dl”.
iii. In the instant case therefore in spite of the fact that in the mortgage deed Exhibit ‘Dl’, clause 3 had restricted the right of the appellant to redeem his property after 31-3-93, clause 4 had given the respondent the right to sell, appropriate and deal with the property in the manner she deems fit after 31-3-93, clause 5 had declared that the agreement is not a pledge, while clause 6 had regarded the handing over of the documents of title to the property by the appellant to the respondent as automatic transfer of title to the property from the appellant to the respondent after 31-3-93 if the loan remained unpaid, the appellant’s right of redemption remained intact under the law and can be validly exercised even after 31-3-93. The learned trial Judge was therefore in error in the circumstances of this case in declaring the respondent the owner of the mortgaged property.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
Ejikeme v. Okonkwo (1994) 8 NWLR (Pt. 362) 266
⦿ REFERENCED (OTHERS)
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