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:-

1. 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

2. 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:-

1. 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.
2. Whether Exhibit ‘G’ is valid as a deed of mortgage in respect of the property contained in Exhibit E and F respectively.
3. 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.
4. 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:-

11. 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.

3. The periodic statement of account of dealings between the defendants would be forwarded to the plaintiff.
4. 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.
5. 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:-

7. 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:-