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DEED: UNAMBIGUOUS OPERATIVE PART CANNOT BE CONTROLLED BY THE RECITAL

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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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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)

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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: 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)

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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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MERE DEPOSIT OF TITLE DEEDS

It is now settled that a mere deposit of title deeds as security for a loan constitutes an equitable charge over the land or property.

– Oguntade JSC. Yaro v. Arewa CL (2007)

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