⦿ CASE SUMMARY OF:
Awojugbagbe Light Industries Limited v. P. N. Chinukwe & Anor. (1995) – SC
by PipAr Chima
⦿ NOTABLE DICTA
* DEED TAKING EFFECT: NATURE OF A DEED
A deed takes effect from the time of its delivery and not from the day on which it is therein stated to have been made or executed. Any other written instrument takes effect from the date of execution. Extrinsic evidence is, however, admissible to prove the date of delivery of a deed, or the execution of any other written instrument. The final and absolute transfer of a deed properly executed, to the grantee or to some person for his use in such a manner that it cannot be recalled by the grant or constitutes delivery. It is also not necessary that the person executing should part with physical possession of the instrument. – OGWUEGBU, JSC. Awojugbagbe v. Chinukwe (1995)
A deed takes effect when it is signed, sealed and delivered. In the circumstance, the date on which a deed is executed may not necessarily be the date on which it takes effect. Delivery in the case of a deed depends on the intention of parties. – Adio JSC. Awojugbagbe v. Chinukwe (1995)
It suffices for the present time to emphasize that a deed takes effect from the moment of delivery as against any other written instrument which takes effect from the date of execution, and although the date expressed in the instrument is prima facie taken as the date of delivery or execution, this docs not exclude extrinsic evidence of the actual date of such delivery or execution. – Iguh JSC. Awojugbagbe v. Chinukwe (1995)
* DEED: DELIVERY OF A DEED IN LAW
It has to be stressed however that the term delivery, in law, is not synonymous with the physical exchange of signed and sealed documents between the parties thereto. It does not also mean the handling over of a document to the other side. It does mean and has been judicially interpreted to connote an act done so as to evince an intention to be bound. Even though the possession of such deed still remains with the maker, or his solicitor, he is bound by it if he has had it delivered in law by doing some unequivocal act whether by words or action evincing an intention to be bound. – Iguh JSC. Awojugbagbe v. Chinukwe (1995)
Awojugbagbe Light Industries Limited
P. N. Chinukwe & Anor.
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Mr. Adelekun.
* FOR THE RESPONDENT
* Amici Curiae
Chief Williams, SAN.
Professor Kasumu, SAN.
⦿ CASE HISTORY
The fact of the case as found by the trial Judge are not in dispute. Between October 1979 and 1987, the 2nd respondent granted a loan of N215,000.00 to the appellant. The terms and condition of the loan were contained in a Loan and Mortgage Agreement, hereinafter referred to as the Mortgage Deed. It appeared from the documentary evidence that negotiation and granting of the loan were transacted long before the execution of the Mortgage Deed. Exhibit B, a letter from the 2nd respondent to the appellant, showed that the loan was approved on 11th October, 1979 and immediately thereafter the appellant started to use the facility. By a letter dated the 20th of November, 1979, the 2nd respondent sent a draft of the Mortgage Deed to the appellant for his comments and approval. In his reply of 22nd November, 1979, the appellant approved the draft and returned it to the 2nd respondent. Again the 2nd respondent forwarded, by their letter of 13th February, 1980, the draft Mortgage Deed to the appellant for execution which he returned to the 2nd respondent duly executed under cover of his letter of 11th march, 1980.
On 26th July, 1982, the 2nd respondent wrote to the appellant as follows: “Loan and Mortgage Agreement The above-mentioned document is yet to be registered because Oyo State Government has not given the necessary consent to the Mortgage transactions. You will agree with us that this matter has dragged on for so long. In view of our anxiety to complete the transactions as soon as possible, we now call on you to take all necessary steps to obtain and forward to us soonest consent of the State Government to the Mortgage transactions.”
It is evident from Exhibit B1, a letter from the Permanent Secretary, Ministry of Works that the appellant had submitted the application for consent on 30th January, 1984 and the Governor’s consent was given on 12th September, 1985. The Mortgage Deed was admitted in evidence as Exhibit E and it showed exfacie that it was made on 8th October, 1985. Accordingly, the trial Judge specifically found that the Deed was duly executed on the 8th of October, 1985 which was after the Governor had given his consent.
Furthermore, Exhibits F and G2, letters from the 2nd respondent to the appellant dated 3rd February, 1987 and 29th May, 1987, showed by that time the appellant’s indebtedness, principal and interest, had accumulated N364,142.08 and when the appellant failed to pay the said sum after demand for its payment, the 2nd respondent exercised its power under the Mortgaged Deed and appointed the 1st respondent as the receiver to the appellant.
After he had served notice of his appointment on the appellant and the appellant had failed to comply with his request for the keys of the Mortgaged premises, the receiver with the aid of security dogs and their handlers to take over the possession of the said premises.
There is no doubt that the Governor gave consent to the mortgage in the instant case, but he did so after the Mortgage Deed had been executed. Accordingly, unlike Ajilo’ s case, the controversy docs not revolve on lack of consent but on consent given after the execution of the Mortgage’ Deed.
The Trial Court & Court of Appeal granted in RF.
⦿ ISSUE(S) & RESOLUTION
1. WHETHER THE DEED EXECUTED before the governor’s consent was obtained is null?
A. In compliance with their intention the deed was not dated at its execution but was dated 8th October, 1985 after the Governor’s consent. Since the date of delivery of the Mortgage Deed was not made an issue and in the circumstances of the case, having regard to the evidence and the findings of the trial court, it is to be presumed that the deed was delivered on the date it was dated, to wit, the 8th of October, 1985. Accordingly, on the authority of Vincent v. Premo Enterprises Ltd. (supra) and Denning v. Edwardes (supra), the Mortgage Deed, a conditional deed, was a mere escrow at its execution and it only became binding and effective after the condition, which was the Governor’s consent, had been fulfilled. It follows that the Mortgage Deed did not breach or contravene section 22 of the Act. The deed is valid. Since the appeal in respect of all the appellant’s claims other than the claim for trespass for forcible entry was based on the purported invalidity of the Mortgage Deed, the appeal failed. The issue relating to forcible entry of the mortgaged premises which according to the submission of the appellant amounted to a trespass, even if the Mortgage Deed was valid, may be summarily dismissed. A mortgagee, like a landlord exercising his right to possess after the expiry of his tenant’s lease, or his agent who entered and took possession of the mortgaged property in exercise of his right under the mortgage agreement is not liable for damages for forcible entry because the right to possess the property had become vested in the mortgage and his agent, the receiver, and the forcible entry was done in furtherance of their rights to possess.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Bello CJN.
I should like to reiterate our appreciation for the commendable assistance given to the Court by the learned amici curiae which enabled us to reach decisions on the issues. They have put up a lot of learning and research for the purpose of the resolution of the apparent conflict in the decisions of the Federal Supreme Court and of this court in Solanke v. Abed (supra) and Savannah Bank v. Ajilo (supra) which were founded on the absence of the Governor’s consent under section 11 of the Land and Native Rights Ordinance and section 22 of the Land Use Act respectively. In the instant case, there is the consent of the Governor and for this reason the decisions in the two previous cases are not relevant for its determination. The resolution of the apparent conflict is therefore not necessary and it has become an academic question. This court has in numerous cases established that it would not indulge itself in the luxury of academic exercise. The appeal is accordingly dismissed. The decision of the Court of Appeal is affirmed. N1,000.00 costs to the respondents.
⦿ REFERENCED (STATUTE)
S. 22, 26, Land Use Act;
⦿ REFERENCED (CASE)
* DEED: INTENTION TO BE BOUND IS GOOD AS DELIVERY
Vincent v. Premo Enterprises Ltd. (supra) at p. 619 Lord Denning, M.R.: “The law as to “delivery” of a deed is of ancient date. But it is reasonably clear. A deed is very different from a contract. On a contract for the sale of land, the contract is not binding on the parties until they have exchanged their parts. But with a deed it is different. A deed is binding on the maker of it, even though the parts have not been exchanged, as long as it has been signed, sealed and delivered. “Delivery” in this connection does not mean “handed over” to the other side. It means delivered in the old legal sense, namely an act done so as to evince an intention to be bound. Even though the deed remains in the possession of the maker, or of his solicitor, he is bound by it if he has done some act evincing an intention to be bound, as by saying “I deliver this my act and deed.” He may, however, make the “delivery” conditional: in which case the deed is called an “escrow” which becomes binding when the condition is fulfilled.”
⦿ REFERENCED (OTHERS)
* DEED: DELIVERY MAY BE BY WORDS OR CONDUCT
Halsbury’s Laws of England 4th edition Volume 12 paragraph 1329 relevantly provides that:- “1329. Delivery of deed. In order to be effective a deed must be delivered as the act and deed of the party expressed to be bound by it, as well as scaled. No special form or observance is necessary for the delivery of a deed, and it may be made in words or by conduct. The usual form of delivering a deed by words is for the executing party to say while pulling his finger on the seal, “I deliver this as my act and deed.” It is not necessary, however, to follow this form of execution; nor is it necessary that title deed should actually be delivered over into the possession or custody either of the person intended to take the benefit of the deed, or to a third person to the use of the party taking the benefit of the deed; though if the party to be bound so hands over the deed, that is sufficient delivery without any words. What is essential to delivery of the document as a deed is that the party whose deed the document is expressed to be (having first scaled it) shall by words or conduct expressly or impliedly acknowledge his intention to be immediately and unconditionally bound by the provisions contained in it.”
⦿ SIMILAR JUDGEMENTS