Platinum Habib Bank PLC V. MR. Oluwole Esan (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment)

The provenance of this appeal is in the overdraft facility which the Appellant granted to one of its customers, Prime Grocers International Limited. As security for the overdraft facility, the said customer presented the title documents in respect of a property belonging to the Respondent. The Appellant found the security acceptable and a Third Party Legal Mortgage was executed on the property. The Respondent was however oblivious of the entire transaction.

Upon realising that there was an encumbrance on his property, he instituted proceedings in the High Court of Lagos State in SUIT NO. ID/1730/2009: MR. OLUWOLE ESAN vs. REGISTRAR OF TITLES & ORS. The other defendants in the action were the Appellant as the 2nd Defendant and the Appellants customer, Prime Grocers International Limited, as the 3rd Defendant.

The reliefs which the Respondent as Claimant in the lower Court sought against the defendants are as follows:

a) A DECLARATION that the property lying being and known as L.S.D.P.C. Omole Residential Scheme, Block 13, Plot 359 covered by certificate

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of occupancy registered as No. 6 on page 6 in Volume 1981H kept in the Lands Registry at Lagos State Secretariat, Alausa, Ikeja belongs to the Claimant.

b) A DECLARATION that the Claimant did not at any time charge his property aforesaid or caused any deed of legal mortgage to be executed between himself and the 3rd defendant, in favour of the 2nd defendant and registered by the 1st defendant as No. 81 on Page 81 in Volume 2011 dated 28th February, 2008 at the Land Registry, Alausa Secretariat, Ikeja.

c) A DECLARATION that the defendants actions in executing a deed of legal mortgage on the property the subject-matter of this action is wrong, unlawful and illegal since they have no such power to do so and on the legal principle of NEMO DAT QUOD NON HABET.

d) A DECLARATION that the aforesaid deed of legal mortgage registered as No.81 on page 81 in Volume 2011 at the Land Registry, Alausa Secretariat, Ikeja, dated 28th February, 2008 by the Defendants is null, void and of no effect having been obtained by fraud.

e) A DECLARATION that the defendants owed the Claimant a duty of care not to injure him or cause damage to his property

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registered as Certificate of Occupancy NO.6/6/1981H in the Land Registry Alausa Ikeja Lagos.

f) A DECLARATION that the Defendants breached that duty of care when they mortgaged the Claimants property without his consent, knowledge or approval thereby encumbering it.