Mortgages

• Pages: 269-392

Accountability of pledgee Paras.701,702

MORTGAGES

(1) ACCOUNTABILITY OF PLEDGEE

701. Can the mortgagor in a native mortgage redeem the mortgage at any

time provided he repays back the loan and expenses which the mortgagee

has put into it?

“On the issue of the existence of the right to redeem a pledged land, we think that

counsel’s submission that there was no evidence to support the finding that under

Olomoro custom land pledged is redeemable is not well founded. The existence of

such a custom in Olomoro was admitted by the defendants. In particular, the 1st

defendant under cross- examination said:- “If the plaintiff’s father had pledged the

land to my father, I would allow the plaintiff to redeem it. According to Olomoro

custom, if land is pledged, it is redeemable.”

On such clear admission by the 1st defendant the learned trial Judge having

found that the land in dispute was pledged, the decision reached by him was, of

course, inevitable. If there were special requirements of Olomoro custom that a

pledged land was not redeemable in the ordinary way by a refund of the sum lent,

then the onus was on the person alleging such requirements to prove them. In the

present case, the defendants neither alleged in their statement of defence nor offered

evidence in proof of such special requirements. In his judgment the learned trial

Judge found as a fact that the plaintiff’s father borrowed £6 from the defendants’

father pledged the land in dispute in accordance with Isoko custom as security and

expressed an intention to redeem when he could get £6 to refund to the defendants’

father; and that under Isoko custom “land pledged is redeemable no matter the length

of time that passed before redemption.”- Per Udoma, J.S.C. in Okpowagha v.

Ewahedoma (1970) 1 All N.L.R. 203 at 210; Suit No. S.C. 38/1968; (1970) 6 N.S.C.C.

165 at 169 – 170.

702. Can the use made by the pledgee of land be regarded as interest on the

capital originally borrowed by the pledgor?

“In kuahen v. Avose, where there was a pledge of palm trees, Smalman Smith, C.J.,

held that the amount of the produce which came to about £12 per annum while the

prevailing customary tribute was £9 per annum must be taken into account so that

the capital borrowed could be reduced each year by the excess of £3 per year. The

learned Chief Justice regarded it as “unjust and inequitable and opposed to natural

justice” a custom according to which, as alleged by the plaintiff, the pledgee was

entitled to “farm the trees and hold them until the original debt be paid, giving and

rendering no account of the value of the produce, which in this case amounted to

more each year than the amount paid as tribute.”

269

Paras. 702-705 Vol. 16: MORTGAGES 270

The matter was taken a step further in Jimoh Amoo v. Rufayi Adigun (1957)

W.R.N.R. 55 in which the plaintiff’s claim for an account of rents collected by the

defendant pledgee while in possession of the plaintiff’s shop in respect of a loan was

granted. It seems to follow from these two cases that the Court will in all proper

cases take into consideration the nature and character of the use to which the pledgee

has put the land while in possession, so that any unjustified benefits thereby derived

by the pledgee may be brought into the final account when the pledge is ultimately

being redeemed.

No longer, it would seem, can the pledgee in possession take all the benefits

from his commercial exploitation of the land and still get back his original capital;

much less can he claim against the pledgor any benefit arising from his having planted

the land with economic crops like cocoa or rubber, or from his having carried out

improvements on the pledged premises.”- Per Elias, C.J.N. in Okoiko v. Esedalue

Suit No. S.C. 265/1972; (1974) N.M.L.R 337 at 344; (1974) 9 N.S.C.C. 153 at 161.

(2) ALIENATION OF FAMILY PROPERTY

703. A purchaser cannot recover possession where family property was sold

without necessary consent.

“Further it is clear that Section 21 of the Conveyancing Act only protects a purchaser

from action by the mortgagor or someone claiming through him in respect of irregu-

larities in the exercise of his powers on the part of the mortgagee, and not from any

one who is in a position to impugn the mortgagor’s title. I am further of opinion that

whether the plaintiff actually attended the sale or not, he must be held to have had

notice of the defect in his vendor’s title.”- Per Butler Lloyd, Ag. C.J. in Erikitola v.

Alli (1941) 16 N.L.R 56 at 58.

704. A purchaser who purchases family property without necessary consent

acquires no interest.

“The notion of the mortgagees that George Egerton Shyngle held a half undivided

share as a tenant in common is due to a misconception of the incidents of family

property. I am therefore of opinion, with respect to the learned Judge on appeal, that

he correctly held on the cases referred to in his judgment that in a tenure of family

property such as this is, an individual member has no right to alienate his interest

without the consent of the family.”- Per Coussey, J.A in Olowu v. Desalu (1955) 14

W.A.C.A. 662 at 663.

705. Mortgage of share of family property without concurrence of members.

“The notion of the mortgages that George Egerton Shyngle held a half undivided

share as a tenant in common is due to a misconception of the incidents of family

property. I am therefore of opinion, with respect to the learned judge on appeal, that

271 Alienation of family property Paras. 705-707

he correctly held on the cases referred to in his judgment that in a tenure of family

property such as this is, an individual member has no right to alienate his interest

without the consent of the family.”- Per Coussey, J.A. in Olowu v. Desalu (1955) 14

W.A.C.A. 662 at 663.

706. No allotee has authority to make a disposition of family property with-

out the necessary consent.

(1) “The evidence before the Court is that the disputed land is owned and farmed

communally by all members of Amaghalu’s family. If the appellant says, as he has

done, that he is not from Amaghalu’s family he cannot possess the said land. DW2,

who is one of the respondents, told the trial Court that the dispute in respect of this

land started when the appellant pledged the land to one Nka Iro. The matter was

reported to the elders and they directed the appellant to return the land back to the

family. Since then the appellant had not gone back to the land in dispute. The appel-

lant told the trial Court that in 1971 he rejoined members of Amaghalu in declaring

that no portion of Amaghalu’s land would be sold. He is wrong now to ask the trial

Court to declare a portion of the land to be his own. His claim for trespass cannot

therefore succeed and it is rightly dismissed. “- Per Mohammed, J.S.C. in Ndukwe

v. Acha Suit No. SC 222/91; (1998) 6 N.W.L.R (Pt. 552) 25 at 36.

(2) “It is clear then that in the present case where the evidence shows that about 500

people are entitled to live in the houses attached to the Iga Kosoko and only about 40

have that privilege, it is preposterous for the appellant to claim to be the owner of the

family houses in which her ancestors had lived simply because they and she had

improved the house. Family property does not cease to be so, simply because a

member of the family has improved it. It was held in Bassey Egbo Bassey v.

Archibong Boco Cobham, (4), that, according to native law and custom, the act of

reclaiming family swamp land does not confer any special property in the land re-

claimed on the individual who reclaimed it, as against the communal title of the fam-

ily.”- Per Jibowu, Ag. F.C.J. in Shelle v. Asajon (1957) 2 F.S.C. 65 at 67; FSC 247/

1956 (1957) 1 N.S.C.C. 55 at 58.

707. Under Yoruba Customary Law a family member who improved portion

of family land cannot alienate the new structure built on such family land

without the consent of the family.

“The following passage form the decision of this Court in Shelle v. Asajon (supra)

leaves me in no doubt that under Yoruba Customary Law, a member of a family who

built on a portion of family land could not alienate the building thereon without the

consent of the family: - “It is a well settled principles of native law and custom that

family property belongs to the family as a whole and that all individual members of

the family are entitled to enjoy the property. It is also a settled rule of native law and

custom that the head of the family is the person entitled to look after and manage