The right to foreclosure is very powerful remedy in the hands of the equitable mortgagee and the vendor who takes a legal estate with notice of an equitable mortgage and therefore subject to this class of equitable interest should bear this in mind since, in certain circumstances, he may find in the end that he has bought a worthless legal estate.
– Idigbe JSC. Ogundiani v. Araba (1978)
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As was said by Harman J. in Alliance Perpetual Building Society v. Belrum In-vestments Ltd. And Ors. (1957) 1 W.L.R. 720, at p. 722 – possession is a remedy to which a mortgagee is entitled as of right against a mortgagor, whether the principal or interest be due or not, unless there is some special clause in the mortgage excluding it. (See also Hughes v. Waite (1957) 1 W.L.R. 713; and Four Maids Ltd. v. Dudley Marshall (properties) Ltd. (1957) Ch. 317.
— Udoma, JSC. Nig. Housing Dev. Society v. Mumuni (1997) – SC 440/1975
Incident to every mortgage is a right of the mortgagor to redeem – this right is generally referred to as the equity of redemption. – Ogundare JSC. Ejikeme v. Okonkwo (1994)
Now, equitable mortgages are created inter alia, (1) by mere deposit of title deeds with a clear intention that the deed should be taken or retained as security for the loan; (2) by an agreement to create a legal mortgage and (3) by mere equitable Charge of the mortgagor’s property. In passing we think that it should be pointed out that the last of the three classes of equitable mortgage i.e. that which is created merely by a charge on the property intended as security for the loan differs considerably from the first two in respect of the remedies it confers; and the property so charged is appropriated only to the discharge of a debt or some other burden in respect of which the property stands charged.
– Idigbe JSC. Ogundiani v. Araba (1978)
For the purpose of this appeal, it must be emphasized that a building erected on a mortgaged land form part of the mortgaged property by virtue of the maxim quic quid plantatur solo solo cedit – meaning “he who owns the land owns what is on it”. Adepate v. Babatunde (2002) 4 NWLR Pt. 756, Pg. 99
— O.O. Adekeye, JSC. Agboola v UBA (2011) – SC.86/2003
A deed of legal mortgage is said to have been created once an agreement exists between the parties, and the instrument signed by the parties which is described as a legal mortgage, provided it is under a seal. Therefore, the legal effect of a deed of legal mortgage is that it allows the mortgagee exercise its possessory rights over the mortgage property. It is to be noted however, that caveat in the position of a mortgagee remains that the mortgage debt has to be outstanding and unliquidated in order for the right of a mortgagee to immediate possession of the mortgaged property to become activated. See AFRIBANK V. ALADE (2000) LPELR – 10722 (CA) and S.W.V. (NIG) LTD V. AMCON (2020) 3 NWLR (prt 1710) 179.
— M.L. Shuaibu, JCA. FBN v Benlion (2021) – CA/C/31/2016
The 2nd respondent’s argument is also misplaced in another respect: It assumes that upon breach of a covenant in a lease, the forfeiture of the lease is automatic. It is, however, trite that a breach of a covenant is merely a ground for forfeiture. The lessee may, however, apply for relief.
– Nnaemeka-agu, JSC. Ude v. Nwara (1993)
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