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MERE DEPOSIT OF TITLE DEEDS

Dictum

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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DEED: UNAMBIGUOUS OPERATIVE PART CANNOT BE CONTROLLED BY THE RECITAL

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

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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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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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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A DEED BECOMES EFFECTIVE UPON DELIVERY

This is because, in my respectful view, it is settled that a transaction created by a deed will not come into effect prior to the delivery of the deed. In other words, a deed only becomes effective upon its delivery. So, until the time specified had arrived or the condition had been performed or the Governor has given his consent, the instrument, will not be a deed so to speak, but is a mere escrow.

– Ogbuagu, JSC. Brossette v. Ilemobola (2007)

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