Union Bank Of Nigeria Plc & Anor V. Ayodare & Sons (Nig.) Ltd. & Anor (2007)
LAWGLOBAL HUB Lead Judgment Report
A. OGUNTADE, J.S.C
The respondents in the appeal were the plaintiffs at the Lokoja High Court of Kogi State where they claimed against the appellants as the defendants the following reliefs:
“(i) A declaration that the plaintiff could not be indebted to the 1st defendant to the sum of N307,680.25 or any sum at all, when the plaintiff should have outstanding credit balance as a result of several payment which are in excess of the limited N45,000.00 covered by purported two deeds of legal mortgage.
(ii) A declaration that the purported deed of mortgage dated 2nd September, 1980; and 7th July, 1981 registered as no. 78 at page 78 in vol. xii (misc) and no. 81 at page 81 in vol. xv (misc) at the land registry Ilorin in respect of plaintiff’s landed property in Lokoja and Kabba respectively be declared null and void and of no effect in that:-
(a) It was not duly executed as required by law.
(b) No consent was sought and obtained from the appropriate authority the governor and Oyi L.G.A. or B.I.K. L.G.A. before the purported deeds of legal mortgage was (sic) executed.
(c) That the purported consent dated 9th July, 1980, 8th August, 1980 and 2nd August, 1989 contained in the two deeds of legal mortgage were not granted by the governor or appropriate authority or the local government as required by law.
(iii) A declaration that the purported two deeds of legal mortgage dated 2/9/80 and 7th July, 1981 first above described on which the 1st defendant sought reliance to compute or charge her interest and arrived at N307,680.25 as at 1989 be declared null and void in that there was no stipulated interest or any interest rate contained therein as base interest as basis for the computation of other subsequent interest or charges.
(iv) A declaration that the 1st defendant cannot unilaterally and arbitrarily increase the banking interest payable on any loan, overdraft, or banking facilities granted to the plaintiff without the knowledge and consent of the plaintiffs.
(v) An order of perpetual injunction restraining the 1st defendant by itself, its servants, agents including the 2nd defendant or otherwise however from auctioning, selling, disposing or otherwise dealing with any rights, title, or interest or advertising for sale the plaintiff (sic) two landed property situate and lying at Odo-Ero quarters Kabba and Lokoja covered by customary right of occupancy no. 1083 dated 7th Dec., 1972 respectively.”
The parties filed and exchanged pleadings after which the suit was tried by, Fabiyi, J. (as he then was). On 21-09-95. the trial Judge in his judgment, found for the plaintiff on claims (ii). (iii). (iv) and (v) above. The defendants were dissatisfied with the said judgment. They filed an appeal before the Court of Appeal, Abuja (hereinafter referred to as ‘the court below’). The court below, in its unanimous judgment, on 13-04-2000, affirmed the judgment of the High Court and dismissed the appeal. Still dissatisfied, the appellants have come before this court on a final appeal.
They raised four grounds of appeal out of which they formulated two issues for determination namelv:
“(1) Whether the learned Justices of the Court of Appeal were right when they held that the deeds of mortgage exhibits 1 and D1 were invalid, null and void having been based on consent issued and signed by Ag. Chief Lands Officer or Permanent Secretary and Director-General, Kwara State Ministry of Lands and Housing respectively, who were not the appropriate authorities under the Land Use Act.
(2) Whether on the peculiar facts of this case, the strict and inflexible application of the ratio decidendi in the case of Savannah Bank (Nig.) Ltd. v. Ajilo & anor. (1989) 1 NWLR (Pt.97) 305 at 324 is not appropriate, distinguishable and inapplicable.”
The respondents also formulated two issues for determination. The said issues are these:
“(i) Whether a transaction or any instrument purporting to alienate a customary right of occupancy of a land issued by a local government pursuant to section 6 of the Land Use Act, without the prior consent of the appropriate local government chairman as required by section 21 (b) of the Land Use Act, 1978 is not null and void.
(ii) Whether in the absence of a proper consent as required by section 22 of the act in this case, the court below was justified to apply the principles emaciated (sic) in the case of Savannah Bank of Nigeria v. Ajilo (1989) SCNJ; (1989) 1 NWLR (Pt. 97) 305.”
A comparison of the two sets of issues for determination raised by the parties to the appeal shows that they are similar. I shall be guided in this judgment by the appellants’ issues. It is necessary that I briefly discuss the facts leading to the dispute out of which this appeal arose. This will assist an appreciation of the issues as discussed in this judgment. The case made by the plaintiffs on their amended statement of claim is very brief and straightforward. It may be summarized thus:
In 1980, the 1st plaintiff obtained from the 1st defendant, a bank, a loan of N40,000.00. In order to secure the loan, it executed two deeds of mortgage of the 2nd plaintiff’s two properties in favour of the 1st defendant. One of the properties was at Lokoja and the other at Kabba both in Kogi State. It would appear that the 1st plaintiff took other loans from 1st defendant which in 1989 brought the total amount owed to 1st defendant to N307,680.25. In 1989, the 2nd defendant as agent of the 1st defendant advertised in the New Nigerian newspapers the sale of 2nd plaintiff’s two landed properties. In reaction the 1st and 2nd plaintiffs (now respondents) instituted against the defendants (i.e. appellants) the claims earlier set out above.
The core issue in this appeal arises in relation to the deeds of mortgage executed by plaintiffs to secure the loan. Sections 21. 22 and 26 of the Land Use Act, Cap. 2002, Laws of the Federation 1990 provide:
“21. It shall not be lawful for any customary right of occupancy or any part thereof to be alienated by assignment, mortgage, transfer of possession, sublease or otherwise howsoever-
(a) without the consent of the Governor in cases where the property is to be sold by or under the order of any court under the provisions of the applicable sheriffs and civil process law: or
(b) in other cases without the approval of the appropriate local government.
- It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained:
Provided that the consent of the Governor –
(a) shall not be required to the creation of a legal mortgage over a statutory right of occupancy in favour of a person in whose favour an equitable mortgage over the right of occupancy has already been created with the consent of the Governor:
(b) shall not be required to the reconveyance or release by a mortgagee to a holder or occupier of a statutory right of occupancy which that holder or occupier has mortgaged to that mortgagee with the consent of the Governor
(c) to the renewal of a sublease shall not be presumed by reason only of his having consented to the grant of a sublease containing an option to renew the same.
(2) The Governor when giving his consent to an assignment, mortgage or sublease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sublease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under subsection (1) of this section may be signified by endorsement thereon. xxx
- Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this act shall be null and void.”
It is apparent from the provisions of the Land Use Act reproduced above that a holder of a statutory right of occupancy who wishes to mortgage the property by assignment must first obtain the consent of the Governor of the state where the land is situate before carrying out the mortgage transaction. Similarly, the holder of a customary right of occupancy of land not in an urban area must obtain the consent of the local government where the land is situate. Where the requisite consent is not obtained, the transaction or instrument which purports to confer or vest the property in any person shall be null and void.
In the instant case, it was the plaintiffs who obtained the consents covering the mortgage transaction in respect of the two mortgaged properties. The plaintiffs, however, by the action they brought had contended that the consents obtained were invalid arising from the fact that the Governor or local government who should give these consents had not done so. In other words, that the persons who purported to give the consents given to the 1st defendant by the plaintiffs were not the appropriate persons to give such consent and that for this reason, the mortgage transactions were null and void. The two courts below agreed with the plaintiffs. Were the two courts below right
At the trial, the plaintiffs tendered as exhibit 1 the mortgage deed executed between the parties on 2nd plaintiff’s property at Kabba. The trial Judge in his judgment at pages 102-103 of the record of proceedings expressed his impression on the letter of approval or consent attached to exhibit 1 thus:
“The next issue is whether or not the two deeds of legal mortgage – exhibits 1 and D1 are null and void. Exhibit 1 is a deed of legal mortgage on the 2nd plaintiff’s property at Odo-Ero Quarters, Kabba under certificate of occupancy No. 005581 signed by Kabba Local Government Authority on 13th April, 1997. This is manifest on page 5 and 6 of same. Section 21 (b) of the Land Use Act, 1978 stipulates that approval to alienation shall be by the local government. The requisite consents in letters dated 8/8/80 and 2/8/89 attached to exhibit 1 were signed by Ag. Chief Lands Officer for Permanent Secretary and Director of Lands for Director-General respectively. It appears that they have no nexus with Kabba Local Government. Or at least, their nexus has not been shown. They cannot take over the functions of the local government as enjoined by section 21 (b) of the Land Use Act, 1978. As if this was not enough hitch, the two officers who signed consent letters signed for Permanent Secretary who acted for Honourable Commissioner or Director General who acted for the state Governor. It is caught by the principle of delegatus non potest delegare.”
Similarly, the court below in upholding the judgment of the trial court observed in its judgment at pages 195-196 of the record as follows:
“This means in my view that the deeds are clearly caught by the provisions of section 26 of the Land Use Act, it reads:-
‘Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this act shall be null and void.’
This now brings me to the Ajilo’s case, it is almost on all fours with the present case. There is no doubt that s.22 of the Land Use Act forbids a holder of a right of occupancy from alienating his right of occupancy or any part thereof without first obtaining the consent of the appropriate authority mandated under the act, the Governor in respect of a statutory right of occupancy and the local government council in respect of customary right of occupancy. Section 26 as shown above expressly declares null and void any transaction which does not conform with the provisions of s. 22 of the Land Use Act. This was the decision in Ajilo’s case and with respect to the learned counsel for the appellant, the decision has not been overruled by the Supreme Court.”
The appellant’s counsel in his written brief before us has argued that the two courts below fell into an error by assuming that the consent to be given to alienation of land by mortgage pursuant to section 22 of the Land Use Act must be given personally by the Governor and that the information to the applicant conveying such consent must similarly be conveyed personally by the Governor. It was submitted that the power to give the consent or approval required under section 22 of the Land Use Act (hereinafter referred to as ‘the Act’) could be delegated to some other public functionaries. Counsel further submitted that in the course of the administration of his state, the Governor as the chief executive officer of the state is expected to manage the affairs and resources of the state with the assistance of designated bureaucrats of various grades. Counsel relied on Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 718-7 19.
On the source of the power of the Governor to delegate his authority to give consent and approval under the act, counsel referred to section 45 of the Act. It was counsel’s further argument that the crucial element is the granting of approval or consent by the Governor’s delegate which in this case is the Commissioner for Lands, and not the medium for the conveyance of the approval or consent to the applicant for such consent or approval. Still pressing forward his argument, appellant’s counsel relied on section 9 of the act and legal notice no.4 of 1978 by which the Military Governor of Kwara State delegated his power in the grant of certificates of occupancy to the Kwara State Commissioner for Lands and Housing. Counsel referred to section 150 of the Evidence Act and Magnusson v. Koiki (1991) 4 NWLR (Pt.183) 119, N.I.D.B. v. Olalomi Industries Ltd. (2002) 5 NWLR (Pt.76 I ) 532 at 548-549 per Onnoghen J.C.A. (as he then was).
On the second issue for determination, appellant’s counsel opined that it would be unjust having regard to the peculiar facts of this case to follow the decision in Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1 SCNJ 213: (1989) I NWLR (Pt. 97) 305, counsel made a distinction between the facts in the instant case and those in Savannah Bank v. Ajilo (supra) at pages 23-24 of his brief, appellant’s counsel submitted thus:
“8.05. It is humbly submitted that the facts of this case and the Ajilo case relied upon by the lower court are distinct in many respects. The differences are as follows:
(i) The ratio decidendi in Ajilo’s case is premised on the failure of the Savannah Bank (Nig.) Ltd. to obtain the consent of the Military Governor of Lagos State before the alienation of the certificate of occupancy by Ajilo to the bank.
(ii) However. in this case, there is evidence that there was approval of the consent by the Honourable Commissioner for Housing while power was vested on the said commissioner under and by virtue of the provisions of section 45(1) of the Land Use Act, 1978 while culminated in the enactment of the Kwara State Legal Notice titled:
‘Delegation of Military Government’s power Notice. 1978, Kwara State. Legal Notice No. 4 of 1978’.
(iii) There was no iota of evidence in Ajilo’s case as to whether any power was delegated. In Ajilo case, there was no consent at all before the alienation was made to Savannah Bank (Nig.) Ltd.
(iv) The exercise of the powers vested in the Commissioner for Housing in respect of the approval of any assignment, mortgages, sublease. etc are matters connected with the grant of cerficates of occupancy under section 45(1) & (2) of the Land Use Act were not raised in Ajilo case.
8.06 It is therefore submitted that the application and full reliance on the decision of this court in Ajilo’s case by the lower court led to a grave miscarriage of justice because the necessary consent was obtained via the appropriate authority in exercise of the powers conferred by the relevant statute.”
Relying further on Ugochukwu v. Co-operative and Commercial Bank Nig. Ltd. (1996) 6 NWLR (Pt.456) 524; Solanke v. Abed (1962) 1 SCNLR 371: Oilfield Supply Centre v. Johnson (1987) 2 NWLR (Pt.58) 625 and Savannah Bank Nigeria Ltd. v. Ajilo (1989) 1 NWLR (Pt.97) 305, counsel submitted that it would be inequitable to allow the plaintiffs to escape from their obligations to the appellant having regard to the fact that the consents to the legal mortgage being challenged in the case were infact procured by the plaintiffs.
The respondents in their brief raised a preliminary objection to the attempt made by appellant’s counsel through his arguments to challenge the evidential basis upon which the issues were heard in the two courts below, It was contended that whether or not the properties which were mortgaged were in urban or non-urban area was not disputed. It was argued that if this court were to consider appellant’s counsel’s argument on the point, counsel would have been allowed to argue a ground of mixed law and fact or fact without obtaining leave.
The appellant filed a rely brief in answer to the preliminary objection raised by the respondent.
I think that the attempt by the appellant’s counsel in his arguments to show that the Governor of Kwara State could give the requisite consent to alienate the two properties in dispute by mortgage is an attempt to blur the clear distinction of the provisions of the Land Use Act which governed the issue of consent and/or approval in urban and non-urban areas. It was not in dispute that the property in respect of which exhibit 1 was executed was at Kabba, a non-urban area and therefore covered by section 21 (b) of the Act being a property in respect of which only the appropriate local government could give the consent or approval to alienate by mortgage. As against this situation, it was also not in dispute that the property covered by exhibit D1 was at Lokoja, an urban area in respect of which only the Governor could give the consent or approval to alienate. Indeed, exhibit 1 covers a land granted under a customary right of occupancy whilst exhibit D1 covers a land granted under a certificate of occupancy. I shall bear in mind the distinction between both in the discussion of the issues.
The consent letter tendered in evidence in relation to exhibit 1, the property situate at Kabba reads:
“Ref. No. LAN/CUS/MORT/331/38
Ministry of Works/Land Housing Environ
Land Division
P.M.B. 1425,
Ilorin, Kwara State.
Date 8th August, 1980.Ayodele Dare
P.O. Box 37
Lokoja
Sir.
APPROVAL OF SUBLEASE/MORTGAGE/
ASSIGNMENT OF PROPERTY ERECTED AT
KABBA COVERED BY CUSTOMARY RIGHT OF
OCCUPANCY NO. 05581/81/77 TO THE UNION
BANK OF NIGERIA LIMITED AT LOKOJA
I am directed to refer to your letter application of 14/9/79 to inform you that the sublease/mortgage/assignment of your landed property covered by customary right of occupancy no. 005581/77 at Kabba, has been approved by the Honourable Commissioner for N20,000.00 (Twenty thousand naira) only.
With effect from 1st August, 1980 subject to the submission of a satisfactory deed of mortgage within four months and payment of stamp duty and registration fee. If a satisfactory deed of xxxxxxxxxxx/mortgage/xxxxxxxxxxxx is not received for registration within four months, then a penal rent of 10k per day will automatically be imposed after four months, with effect from the date of this letter, and will remain in being until sometime as a satisfactory deed is received in this ministry for registration.
Yours faithfully.
Signed (B. D. Olle)
Ag. Chief Lands Officer
For Permanent Secretary;
Copy to:
The Zonal Officer.
Ministry of Works, Lands and Housing
…
Above for your information, Your file reference is
No……….
Delete as appropriate.
…………..
Chief Lands Officer,”
Earlier in this judgment I reproduced section 21(b) of the act. The section states that it shall not be lawful to alienate by assignment or mortgage any land subject to any customary right of occupancy without the approval of the appropriate local government. The letter of approval reproduced above was signed by Ag, Chief Lands Officer, Ministry of Lands and not by the local government concerned or who issued the customary right of occupancy.
As the trial Judge found, there was no link or relationship established between the local government concerned and the Ag. Chief Lands Officer. Clearly therefore the letter could not be regarded as an approval within the intendment of section 21(b) of the act now, section 45 of the Land Use Act provides:
“45(1) The Governor may delegate to the state commissioner all or any of the powers conferred on the Governor by this act subject to such restrictions, conditions and qualifications, not being inconsistent with the provisions or general intendment of this act as the Governor may specify.
(2) Where the power to grant certificates has been delegated to the state commissioner, such certificates shall be expressed to be granted on behalf of the Governor,”
The above section 45(1) of the act only gives a Governor the power to delegate the authority granted under the act. There is no corresponding power of delegation granted to a local government. It is therefore untenable that the Ag. Chief Lands Officer, Ministry of Lands could exercise the power granted under the act to the local government. The result is that the decision of the two courts below on exhibit 1 is sound and on firm ground.
The position in relation to exhibit D1 deserves a separate consideration. The land covered by exhibit D1 is situate at Lokoja and covered by statutory right of occupancy. Under section 22 of the act, consent to alienate or mortgage the same must be given by the Governor. It is unlawful for a holder to alienate or mortgage such land without the consent of the Governor; and section 26 of the act makes a transaction carried out without the consent of the Governor null and void. However, the consent letter dated 9-7-80 which was attached to exhibit DJ, one Mr. J. Ola Dada Ag. Chief Land Officer signed for the Permanent Secretary who acted for the Honourable Commissioner.
There is no doubt that the Governor of a state can delegate his power to a commissioner under section 45 of the act. There is also no doubt that by the legal notice no.4 of 1978 the Governor or of Kwara State did delegate his powers under the act to the Commissioner for Lands and Housing. The said delegation reads:
“1. The holder of the office specified in the second column of the schedule hereto is hereby delegated by the Military Governor of Kwara State of Nigeria to exercise the powers and perform the duties specified in the first column of schedule which are conferred or imposed upon the Military Governor by the provisions of the Land Use Decree.”
The case made by the respondents is that notwithstanding the delegation in the legal notice above, exhibit D1 was invalidly issued because only the Commissioner for Lands and Housing to whom the powers were delegated could validly give the consent to alienate by mortgage. Now in Savannah Bank Nig. Ltd. v. Ajilo (1989) 1 NWLR (Pt.97) 305, this court took the view that the failure to comply with the provisions of section 22 of the act would be visited with the penalty provided under section 26 of the act and the deed of mortgage concerned declared a nullity. At page 337 of the report, this court per Obaseki JSC said:
“It is my view too that any failure by a holder under sections 34(2) or 36(2) of the act to comply with the provisions of section 22, would attract the full vigour of section 26 of the act and render a transaction or an instrument arising therefrom null and void. In the circumstances of this case, I would, as the two lower courts did, hold that the deed of mortgage dated 5th September, 1980 (marked exhibit A in these proceedings) executed by the 1st plaintiff in favour of the 1st defendant bank to secure money owed it by the 2nd plaintiff company (respondents herein) is null and void, the consent of Military Governor of Lagos State having not been obtained before the execution of the deed.” The issue in the Ajilo’s case (supra) would however appear to be slightly different to the one I have before me in this case. In the Ajilo case, this court in a general sense insisted on the necessity to comply with the provisions of section 26 of the act which prescribe that non-compliance with section 22 of the act would lead to the transaction being declared null and void. In the instant case, the consent given vide exhibit D1 was signed by a person to whom no power was expressly delegated by the Governor. The argument of the appellant is that the Governor must necessarily exercise his powers through public functionaries and officials; and that therefore the letter attached to exhibit D1 should be seen as one emanating from the Commissioner for Lands and Housing to whom the power was delegated by the Governor. Appellant’s counsel has in support of this argument directed my attention to section 150 of the Evidence Act which provides:
“150(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.
150(2) When it is shown that any person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act.”
It seems to me that subsection (2) of section 150 above is inapplicable to this case because the dispute here does not raise the question whether or not the person who signed exhibit D1 was validly appointed to any office. It is unhelpful to presume that a lands officer, who ordinarily is a civil servant has been appointed a ‘Commissioner for Lands and Housing.’ It seems to me also that one would need to engage in a measure of tortuous reasoning in order to presume that the consent of the commissioner had been antecedently received before the letter attached to exhibit D1 was written by Ag. Chief Lands Officer. This is because section 22 of the act postulates that the Governor shall sign the letter granting consent, a duty which the Governor could and did validly assign to the Commissioner for Lands and Housing. In the manner the case was fought at the High Court, the plaintiff’s case was that the Governor or his delegate did not sign. Since the person who signed was not the Governor’s delegate it would be wrong to assume that the signature of the Ag. Chief Lands Officer on exhibit D1 was an act done in a manner substantially regular on the face of it. The signature of the Ag. Chief Lands Officer on the letter attached to exhibit D1 cannot be seen as being in substantial conformity with the signature of the Governor or his delegate, the Commissioner for Lands and Housing. It seems to me therefore that section 150 of the Evidence Act does not lift appellant’s case any higher.
My attention has been drawn to a decision of the Court of Appeal in N.I.D.B. v. Olalomi Ind. Ltd. (2002) 5 NWLR (Pt.761) 532 at 548-549 per Onnoghen J.C.A. (as he then was). In that case my learned brother reasoned in his judgment at pages 547-548 of the report thus:
“In considering this aspect of the case the learned trial Judge found and held at page 135 of the record inter alia as follows:
‘It follows then that a state commissioner is empowered to sign letter of consent. In the instant case, an Ag. Chief Lands Officer signed for the Permanent Secretary. I do not think this is right. It looks like the adage of a monkey sent with a message who in turn sends its tail to deliver the message to the addressee. This accords with the legal maxim that delegatus non (sic) protest (sp) delegare. ‘A delegate cannot delegate.’ This means that a person to whom a power, trust or authority is given to act on behalf or for the benefit of another, cannot delegate it unless he is authorized to do so ….. In the instant case, there is multiple delegation of the power conferred on the commissioner. This has made nonsense of the Kwara State Legal Notice No. 41 1978. I hold that the consent signed by the Ag. Chief Lands Officer for the Permanent Secretary is invalid and I hold that the maxim delegatus non protest (sp) delegare is applicable to this case’.
It is very obvious that the learned trial Judge is very correct in his exposition of the maxim delegatus non protest delegare but I do not agree that the said maxim is applicable to the facts of this case. It is obvious that the learned trial Judge merely treated or assumed that the person who signed the document under consideration is the person allegedly consenting to or approving the mortgage transaction; in this case the Ag.Chief Lands Officer who signed same for the Permanent Secretary. If the learned trial Judge had read the body of the document particularly the portion reproduced supra he would have seen clearly that what the Ag. Chief Lands Officer did on behalf of the Permanent Secretary is to inform the respondent of the approval of the commissioner for the mortgage transaction as required by the said respondent in his application. This, it is my considered opinion does not make either Permanent Secretary or the Ag. Chief Lands Officer a sub delegate of the Hon. Commissioner for the purposes of approval of mortgage transactions, so as to render the maxim ‘delegatus non potest delegare’ applicable. What the Ag. Chief Lands Officer did is merely to convey to the respondent the approval of the commissioner, who is the appropriate authority in that matter, as regards the application of the said respondent for that purpose.
In short the document clearly and loudly speaks for itself and it is the best evidence of its contents. It is my considered view that the document is sufficient evidence of the approval of the commissioner to the transaction referred thereto since it conveys the said approval. There is nothing in the law which prevents someone else other than the delegate from conveying the approval so granted by the delegate.”
With respect to my learned brother, I think that if what was to be proved before the trial court was whether or not the Commissioner for Lands and Housing had signed letter of consent, it would be an error to reason that the letter of consent placed before the court was merely the evidence that the appropriate commissioner had previously granted his consent before the letter in question was written. In the instant case, the plaintiffs had in paragraphs 15 and 16 of their amended statement of claim pleaded:
“15. The plaintiff will contend at the hearing of this suit that the two purported deeds of mortgage first above described were not duly executed as to warrant any exercise of the power of sale as per paragraph 14 above.
- The plaintiff will contend at the hearing of this suit that the landed property in the mortgage deeds at Odo-Ero quarters, Kabba which is subject of customary right of occupancy and the purported consents dated 2nd August, 1989, 8th August, 1980 and 9/7/80 respectively are void and of no effect in that it was not granted in accordance with the relevant provision of the Land Use Act, 1978,”
The defendant (i.e. appellant) joined issue with the plaintiff in paragraph 14 of the statement of defence where it averred thus:
“14. Further on paragraph 16 the 1st defendant says that it granted all the facilities above stated on the understanding that the security given by the plaintiffs is correct and valid and the 1st defendant shall urge that if for any reason the plaintiff have misrepresented the situation to it, they should not be allowed to benefit from their wrong deed. The 2nd plaintiff also entered into an unlimited personal guarantee with the 1st defendant for the 1st plaintiff.”
At the trial the plaintiff testified through the 2nd plaintiff. The defendant also called one witness. On the state of pleadings, the case of the plaintiff was that the consent granted for the purpose of the mortgage transaction were invalid. The defendant on the other hand did not contend that the consents granted were valid. Rather, what they pleaded was that the plaintiffs procured the consent and gave them to it for the purpose of securing the loans which the plaintiffs sought from it. The contention of the defendant did not create an issue as to the validity of the consent. However, whether or not exhibits 1 and D1 were in conformity with the law was a matter for the determination of the court. It is of crucial importance for me to stress here that the defendant did not plead that the Commissioner for Lands and Housing had granted the consent and that the letter attached to exhibit D1 only communicated the consent earlier granted. It is therefore irrelevant to consider whether or not the commissioner had antecedently granted his consent before the letter was written. Parties are bound by their pleadings. Similarly the court is also bound by the pleadings: See Oke-Bola v. Molake (1975) 12 SC 61 at 62 , here this court per Sowemimo J.S.C. (as he then was) emphasized the importance of courts allowing themselves only to be governed and/or directed by the issues raised through the parties pleadings. Pleadings must be seen as the engine room of litigation in cases fought in the High Court on the basis of pleading.
See also Orizu v. Anyaegbunam (1978) 5 SC 21 at 36 and Adebisi & Ors. v. Oke (1967) NMLR 64 at 66.
Given the state of pleadings on which the suit was tried, the trial court only needed to determine whether or not exhibits I and D1 were in conformity with sections 21(b) and 22 of the Land Use Act respectively. The trial court had no need to consider whether or not there existed anywhere some ‘consents’ more authentic or regular than exhibits 1 and D1 because no one pleaded such matter. It seems to me therefore that the trial court and the court below were right in confining themselves simply to a determination of the validity of exhibits 1 and D1.
But the matter goes beyond that. The defendant had pleaded that the plaintiffs procured and gave it (the defendant) exhibits 1 and D1 and that it (the defendant) placed reliance on the exhibits to grant the plaintiffs the loan sought. This brings me to appellant’s issue no.2. Is it equitable to allow the respondents who had procured exhibits 1 and D1 to benefit from their own wrongful act by giving to the defendant as security for the loan consents known by them to be invalid The decision in Solanke v. Abed (1962) 1 All NLR 230 is in point here. In that case the Federal Supreme Court had to decide whether a tenancy agreement was null and void the same having been made in contravention of section 11 of the Land and Nature Rights Act (chapter 105 of the 1948 edition) which declares null and void any transfer, mortgage or sale done without the consent of the Governor first had and obtained. The said section 11 provides:
“Except as may be otherwise provided by the regulations in relation to native occupiers, it shall not be lawful for any occupier to alienate his right of occupancy, or any part thereof by sale, mortgage, transfer of possession, sublease or bequest or otherwise howsoever without the consent of the Governor first had and obtained, and any such sale, mortgage, sublease, transfer or bequest, effected without the consent of the Governor, shall be null and void.”
The court at pages 233-234 of the report said:
“This leads me to consideration of the question whether the agreement was illegal for, if it be illegal, there is authority for saying that the defendant could reply on his own wrongful act for reasons which are fully set out in Chitty on Contracts (21st Edition), at page 470. It will, however, be unnecessary to consider whether the principles there set out apply in this action for trespass if the agreement was not, infact, illegal, and this must first be considered. The question whether a contract declared void by statute is illegal has been considered in a number of cases which are referred to in Maxwell on the interpretation of statutes, (10th Edition), at page 212, where the position is set out in this way:-
It may probably, be said that where a statute not only declares a contract void, but imposes a penalty for making it, it is not voidable merely. The penalty makes it illegal. In general, however, it would seem that where the enactment has relation only to the benefit of particular persons, the word ‘void’ would be understood as ‘voidable’ only at the election of the persons for whose protection the enactment was made and who are capable of protecting themselves, but that, when it relates to persons not capable of protecting themselves, or when it has some object of public policy in view which requires the strict construction, the word receives is natural full force and effect.
The statute at present under consideration says that it shall be unlawful for the occupier to alienate his right of occupancy but the statute does not provide any penalty for breach of the provisions, nor would it appear necessary in the interest of public policy for an agreement of alienation to be treated as illegal. Public policy can be adequately safeguarded by the government’s power of revocation and right of re-entry previously mentioned. In these circumstances I would hold that the contract was not illegal. The reference in Maxwell referred to above also deals with the question of a contract being treated as voidable but this issue does not arise in this appeal.
For these reasons I am of the opinion that it was not open to the defendant in the circumstances of this case, to rely upon his own wrongful act so as to allege, as against the plaintiffs that the agreement of tenancy was null and void unenforceable under s.11 of the Land and Native Rights Act. The agreement was not illegal.
In the course of argument in this appeal mention was made of a recent decision of the privy council in a case from East Africa where the judicial committee considered the position under the Kenya Crown Lands Ordinance between the signing of an agreement of alienation and the Governor’s consent to the alienation.
The case is Denning v. Edwardes (1961) A.C. 245, and the judicial committee held under the wording of the Kenya Law and circumstances of the case that the agreement was not void ab initio, but it remained inchoate pending the consent of the Governor.”
However in the Ajilo case (supra) this court considered the wording of section 26 of the act which provides:
“26. Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this act shall be null and void.”
This court took the view that it was undesirable to invoke the maxim ex turpi causa non oritur action. The court said at page 324 of the report:
“Although the 1st plaintiff/respondent by the tenure of the Land Use Act committed the initial wrong by alienating his statutory right of occupancy without prior consent in writing of the Governor, the express provision of the Land Use Act makes it undesirable to invoke the maxim ‘ex turpi causa non oritur action’ and the equitable principle enshrined in the case of Bucknor-Maclean v. Inlaks Ltd. (1980) 8-11 SC 1.”
I am satisfied that the two courts below were right in following the decision in Savannah Bank (Nig.) v. Ajilo (1989) 1 NWLR (Pt.97) 305 in view of the fact this court had directly adverted its mind to the state of the law and judicial authorities on the equitable doctrine in the maxim ex turpi causa non oritur action. It may seem wrong that the plaintiffs/respondents who had procured exhibits 1 and D1 later turned round to rely on the supposed invalidity of the exhibits but the decision of this court in Ajilo is still binding on this court. I have not been called upon to consider overruling same.
In the final conclusion, I would dismiss this appeal and affirm the judgments of the two courts below. I award in favour of the respondents N10.000.00 as costs.
SC.375/2001
