Background
The claimants, Mr Franklin Omozee and Mr Frank Iyekekpolor, instituted Suit No. B/228/08 on 28 April 2008 (writ issued 13 May 2008) against Wema Bank Plc, successor to the defunct National Bank of Nigeria Ltd. They sued in a representative capacity on behalf of themselves and the administrators of the estate of their late father, Mr Edward Eguogie Omozee. By their Consequentially Amended 5th Statement of Claim (filed 22 December 2015), they pursued: (i) a declaration that they are entitled to the return of the title documents for the property at No. 3 Abu Street, Off Agho Street, Benin City, used as security for an overdraft facility; and (ii) the sum of N30,000,000 as general damages for wrongful withholding of those documents. The defendant counter-claimed N2,617,260.39, being the outstanding debit balance on an account held in the name of Omozee Commercial & Technical Limited (Account No. 1136) between 28 September 1986 and 26 June 2014.
The claimants opened their case on 23 May 2016 by calling both administrators, tendering letters of authority (Exhibits A, B and C), the facility documentation (Exhibits D, D1, D2) and various correspondence and payment tellers (Exhibits E–L). They testified under cross-examination about the identity of the debtor, the burial rites under Bini native law, and the repayments they made post-mortem into a separate account (No. 500183) in satisfaction of the debt. They relied on a bank certificate issued by the Probate Registry (Exhibit G) endorsing a debit of N35,873.08 as at January 1985, which they allege they fully liquidated. The defendant’s sole witness, a bank legal officer, adopted Written Statements on Oath (24 September and 28 July 2016), denied any undertaking to stop interest upon notification of death, and tendered a statement of account and certificate under section 84 of the Evidence Act (Exhibits M, M1) to support its counter-claim.
Issues
- Whether Wema Bank Plc was justified in refusing to release the title documents of the late Edward Omozee to the claimants.
- Whether the claimants are entitled to N30,000,000 in general damages for wrongful withholding of those documents.
- Whether the defendant’s counter-claim for N2,617,260.39 as the outstanding debit balance is established.
Ratio Decidendi
The court held that:
- Under a legal mortgage, the mortgagee retains title documents until the loan, including all accrued interest and costs, is fully discharged by the mortgagor or his estate.
- Notification of a mortgagor’s death does not ipso facto suspend interest; any such cessation must be proven by clear, credible evidence of a contractual or policy undertaking by the bank.
- The equitable right of redemption, permitting the recovery of collateral, arises only upon proof of full liquidation of the secured debt.
Court Findings
- The title documents were pledged by Mr Edward Omozee trading as Omozee Commercial Typewriters; the limited liability company Omozee Commercial & Technical Ltd never executed or ratified the mortgage and has a separate legal personality.
- No credible evidence was led that the bank agreed to stop interest upon the mortgagor’s death; the claimants’ own Exhibit J admitted ongoing interest charges of over N500,000 as at July 2007.
- The claimants failed to discharge the primary burden of proving full repayment of the endorsed N35,873.08; the payment tellers (Exhibit I) accounted for only N25,481.97, and the remainder was unexplained or undocumented.
- On this basis, the bank lawfully retained the title documents; the claimants’ equitable redemption cannot succeed until full liquidation is shown.
- The claim for general damages was unsustainable in the absence of breach beyond the mortgage terms.
- The defendant’s counter-claim was unproven: Exhibits M and M1 lacked opening balances and a breakdown of transactions, and the bank failed to produce comprehensive statements covering the relevant periods, inviting an adverse presumption under section 167(d) of the Evidence Act.
Conclusion
Both the claim and the counter-claim failed. The claimants were not entitled to the return of the title documents until they proved full discharge of the secured debt, nor to damages. The defendant’s claim for N2,617,260.39 was unestablished. Suit dismissed in its entirety, without order as to costs.
Significance
This judgment underscores that in Nigeria a mortgagee’s right to withhold collateral remains enforceable until the debt is discharged, and a mortgagor’s estate bears the burden of proving liquidation before exercising redemption. It highlights the necessity of clear documentary proof for any interest suspension and the critical importance of comprehensive bank statements in substantiating or resisting claims of payment.