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DEED: UNAMBIGUOUS OPERATIVE PART CANNOT BE CONTROLLED BY THE RECITAL

Dictum

I think Professor Kasunmu, S.A.N. counsel for the appellant was right when he submitted that the Court of Appeal relied on the recital to the deed to control the operative clause in Exhibit A. It is well settled that in interpreting a deed, an unambiguous operative part cannot be controlled by the recital. The clear and unambiguous operative part must be given full expression and effect. See I.R.C. v. Raphael (1935) A.C. 96,135 Dawes v. Tredwell (1881) 18 Ch. D. 354,388-9.

— Karibe-Whyte, JSC. Adebanjo v Olowosoga (1988) – SC 134/1986

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DEPOSIT OF TITLE DEED CREATES EQUITABLE MORTGAGE

Kadiri v. Olusaga (1956) 1 FSC at p. 178: “It is the case, as stated by the learned trial Judge, that the security given was not the form of a legal mortgage, that is to say by deed, transferring the legal estate to the respondent, but the deposit of title deeds as security for a loan is an equitable mortgage, and I am unable to agree that the loan was an unsecured one within the meaning of the legislation in question. As Lord Macnaghten said when delivering the judgment of the Board in Bank of New South Wales v. O’Connor (1889) 14 AC page 273. ‘It is a well established rule of equity that a deposit of a document of title without either writing or word of mouth will create in equity a charge upon the property to which the document relates to the extent of the interest of the person who makes the deposit. In the absence of consent that charge can only be displaced by actual payment of the amount secured.'”

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EXTRINSIC EVIDENCE CANNOT VARY A DEED

It was common ground that the relationship between the plaintiff and the 1st defendant is contractual and governed by exhibit B, the Deed of Legal Mortgage. That being so, extrinsic evidence will generally not be acceptable to vary the terms agreed upon (see for example U.B.N. v. Ozigi (1994) 3 NWLR (Pt. 333) 385). – Kutigi JSC. Okonkwo v. Cooperative Bank (2003)

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BENEFIT OF EARLIER REGISTRATION IN DEED

It cannot be disputed that where two competing deeds are registered, each takes effect as against the other from the date of registration and the benefit of earlier registration is preserved.

– Iguh JSC. Kayode v. Odutola (2001)

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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.”

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DEED REGISTERED IS NOT EVIDENCE OF DELIVERY

The fact that the Deed of Lease was registered is not evidence of its delivery – see Jules V Ajani (1980) 5 S.C. 96. A.S.H.D.C. v Emekwue (1996) – SC. 282/1989

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DEPOSIT OF TITLE DEED CREATES EQUITABLE MORTGAGE

It is settled that the deposit of title deeds with a bank as security for a loan, creates an equitable mortgage as against legal mortgage which is created by deed transferring the legal estate to the mortgagee. – Chukwuma-Eneh JSC. Yaro v. Arewa CL (2007)

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