Zakariyau Haruna V. Savannah Bank of Nigeria & Anor. (1994)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
By a Deed of Legal Mortgage executed on 16/5/83 which has been registered with the Plateau State Lands Registry, the appellant mortgaged his landed property No. 12B Gboko Road, Tudun Wada, Jos covered by Certificate of Occupancy No. BP 1422 to the 1st respondent in consideration for a loan of N35,000.00. By a letter of commitment signed by the appellant, it was agreed that the purpose of the loan was to enable the appellant complete the building on the said property and rent it out. The loan was to be repaid from the rent proceeds in 5 equal yearly instalments commencing from January 1984. The appellant defaulted in repaying the loan. The 1st respondent wrote three demand notices to the appellant. Still the appellant failed to repay the loan. The 1st respondent then exercised its power of sale by virtue of Clause 6 of the Deed of Legal Mortgage and sold the mortgaged property to the 2nd respondent for N80,000.00.
Aggrieved by the sale, the appellant instituted an action in the Plateau State High Court, holden at Jos claiming the following reliefs:-
“(a) A Declaration that the purported sale of 12 Gboko Road is illegal, null, void and of no effect whatsoever;
(b) The sum of N200,000.00 less the plaintiff’s indebtedness to the 1st Defendant being the true and open market value of the plaintiff’s property at 12 Gboko Road, Tudun Wada Jos undersold by the 1st Defendant in bad faith to the 2nd Defendant.”
Pleadings were ordered, filed and exchanged. The 2nd respondent counterclaimed as follows:-
“(i) Possession of the premises i.e. plot 12 Gboko Road Tudun Wada G.R.A. Jos.
(ii) Arrears of rent from 17th March 1987 to November 1987 8’bd months N11,687.50.
(iii) Mesne profit of N1,375.00 every month from December, 1987 until possession is given.”
At the trial, the appellant gave evidence. He also called another witness, a quantity surveyor, who testified to the value of the property at the time it was sold. The respondents called one witness each. The learned trial Judge, Momoh J, in a well considered judgment dealt with all the issues raised in the case. On the issue that the 1st respondent sold the property before the right of sale accrued, the learned Judge found:-
“Paragraph 6 of the mortgage empowered the Bank to call in the loan and exercise its power of sale anytime after the execution of the mortgage provided that the payment of the monies secured had been demanded and the plaintiff has made default for one month in paying the same after the demand. The condition requiring notice to pay the mortgage money having been satisfied by the Bank and the plaintiff having defaulted to pay as covenanted, the power of sale arose and became exercisable under the mortgage irrespective of whether or not the five years period allowed in the earlier loan conditions Exhibit V had lapsed, if mortgage money is payable by instalments as in this case the power to sell arises as soon as any instalment is in arrears. That right becomes exercisable when payment has been demanded and there is default as aforesaid. The submission that the power of sale had not arisen is accordingly overruled. ”
On the issue that there was no breach of the condition of repayment of the loan from rentals in that the building has not been completed not to talk of renting it out, the trial Judge said:-
I am unable to agree with the suggestion that the building was not completed or that it was not in tenantable condition to be let out. The plaintiff himself confirmed in his letter to the Bank of 22/1/84 Exhibit D that he had completed the building from private sources and had moved in with members of his family. This was after the Bank had written to complain that instead of renting out the property to payoff the loan as agreed, he occupied it and paid nothing to the Bank. I am satisfied that it was the plaintiff and not the Bank that breached the condition of the loan agreement requiring him to let the property to satisfy the loan. Upon the breach by plaintiff of the agreement to rent the property and liquidate the loan from rental the power of sale became exercisable and the plaintiff cannot challenge the Bank for exercising right of sale on that ground. ”
The third reason for challenging the sale was that the sale was made in bad faith, at a grossly low price and in collusion with the 2nd respondent. The trial Judge considered all these issues and came to the conclusion that:-
“The sale of the property on 17/3/87 for N80,000 was quite low.”
With regards to bad faith the learned Judge found:-
“On the issue of bad faith paragraph 30 of the plaintiff’s pleadings states that the sale was made in “bad faith and not for the purpose of recovering the loan” It was not disclosed for what purpose the property was sold. The fact was undisputably established by the witness for the Bank the property was sold by the Bank in the exercise of its power of sale derivable from the mortgage and for the sole purpose of recovering the amount from the plaintiff. I am satisfied that the power of sale was exercised bona fide for the purpose only.”
The trial Judge also found that there was no collusion between the 1st and 2nd respondents and that the 1st respondent was neither reckless nor negligent in the sale of the property. She then considered the effect of selling the property at a low price. After considering the law she said:-
“The sale of the plaintiff’s property is grossly low and I so find in this case here. That notwithstanding I think that the court should examine the condition or circumstance surrounding the particular sale before determining whether or not the grossly low price is prompted by fraud. The need to plead fraud is equally essential but this was not done in the plaintiffs pleadings:…..
In the case before me the low price obtained was tied to allegation of collusion, bad faith, negligence and recklessness in the sale transaction all of which allegations I have dismissed. There was no mention of fraud or fraudulent sale by the plaintiff in his pleadings or evidence. To apply the rule therefore that the price is so low as is in itself evidence of fraud, I must satisfy myself that the fraud was pleaded and that the circumstances and conduct of the sale were such that did not justify the acceptance of the low price. I’m unable to arrive at such conclusion in this case.”
The learned trial Judge found the sale as proper and legal and dismissed the plaintiff’s claims.
With regards to the 2nd respondent’s counter-claim the trial Judge held that the 2nd respondent was entitled to the possession of the premises and ordered the appellant to give up possession of the premises to the 2nd respondent. She refused the 2nd respondent’s claim for rents and mesne profit on the ground:-
‘The 2nd defendant’s counter-claim against the plaintiff in occupation of the property for the payment of rent and mesne profit cannot be conveniently and properly be disposed of in this suit. The reason being that the same claim for rent and mesne profit is the subject matter of a pending sister suit in this court. In it the plaintiff sued the 1st defendant Bank for the same monetary claim in suit (No. PLD/J211/87) which has been pending the outcome of this judgment. It is directed that all claims for rent be made in the said pending suit PLD/J211/87 if it is intended that the claim be still pursued. ”
Dissatisfied with this decision, the plaintiff appealed to this court on four original grounds of appeal. He later sought and was granted leave to file two more additional grounds of appeal. The 2nd defendant, the 2nd respondent herein, also cross-appealed on the trial Judge’s refusal to award him arrears of rent and mesne profit as claimed in the counter-claim. He filed two grounds of appeal.
Shorn of their particulars the appellant’s grounds of appeal read:-
“(1) The decision of the lower court is against the weight of evidence.
(2) The lower court erred in law and on the facts when it held that the loan was due and payable when upon a proper interpretation of the contractual agreement with respect to the repayment of the loan, the loan had not fallen due and payable at the time of the purported sale of the property, which renders the sale void.
(3) The lower court erred in law and on the facts when it failed to hold that the sale was in bad faith despite the overwhelming evidence of collusion and gross low price.
(4) The lower court erred in law and misdirected itself on the facts when it failed to hold the 1st defendant liable to pay the sum N120,000.00 being the difference between the gross low price and the proper price.
(5) The lower court erred in law and misdirected itself when it held on page 101 of the records –
“The principle of law presuming fraud where the property is sold at gross under-value or at a ‘grossly low price does not appear to apply in a sale such as this made lawfully, properly in good faith and without collusion the sale is proper and legal and is not liable to be set aside.” and this occasioned miscarriage of justice.
(6) Prior to consent of the Military Governor, a condition to the conduct of such sale under the Land Use Decree was not obtained before the purpose. If the lower court had properly adverted to the Supreme Court decision in Savannah Bank v. Ajilo (1989) 1 NWLR (Pt.97) 305; 1989 1 SCNJ 169. It would have come to a different decision.”
Briefs were filed and exchanged. The appellant formulated four issues for determination. The issues formulated by the appellant are:-
“(1) Whether having regard to Exhibit “N” – the conditions governing the loan agreement as well as the fact that the 1st respondent was aware of efforts being made by the appellant to repay the loan in full was the 1st respondent right in selling off the property as it did before the expiration of the five years repayment period.
(ii) Whether having regard to the surrounded circumstances in which there was private communication arranging the sale between the respondents before Exhibit “G” purporting to be Public Notice of the intended sale was issued, as well as the surreptitious secretive sale not even on the date specified in Exhibit “G” aforesaid at a gross low price, the said sale is not vitiated on grounds of collusion and or bad faith.
(iii) Whether the learned trial Judge was right in failing to hold the 1st respondent liable to pay the sum of N20,000.00 being the difference between the gross low price at which the property was sold to the 2nd Respondent and the proper price as per the evidence of P.W.2.
(iv) Whether having regard to the provisions of the Land Use Decree 1979, as well as the Supreme Court decision in the case of Savannah Bank (Nig.) Ltd. v.Ajilo (1989) 1 NWLR (Pt. 97) 305 the prior consent of the Military Governor of Plateau State ought to have been sought and obtained before the sale of the property to the 2nd respondent.”
The 1st respondent formulated two issues for determination while the second respondent formulated four issues for determination. For the determination of this appeal I will adopt the issues formulated by the appellant. Before considering the submissions contained in the briefs, I will first consider the grounds of appeal filed.
A ground of appeal that alleges error in law and misdirection at the same time is incongruous, hence incompetent, for a ground of appeal cannot be an error in law and a misdirection at the same time. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744 where Nnaemeka-Agu, J.S.C. observed as follows:- .
“………… A ground of appeal cannot be an error in law and a misdirection at the same time, as the appellants grounds clearly postulate. By their very nature one ground of appeal cannot be the two. For “misdirection” originated from the legal and constitutional right or every party to a trial by jury to have the case which he had made whether in pursuit or in defence, fairly submitted to the consideration of the tribunal..
In our system in which the Judge is Judge and Jury, a misdirection occurs when the Judge misconceives the issues, whether of facts or of law, or summarizes the evidence inadequately or incorrectly He may commit a misdirection either by positive act or by non-direction. But when his error relates to his finding it cannot properly be called a misdirection; it should be an error in law.”
Grounds 4 and 5 which allege error in law and misdirection at the same time are incompetent, they are hereby struck out. It therefore follows that issue No.3 will be discountenanced. It has not arisen out of any ground of appeal.
At the hearing of the appeal O.B. James learned counsel for the appellant adopted the appellant’s brief filed on 5/3/93 and urged the court to allow the appeal. The 1st respondent’s counsel Mrs. T.I. Obot also adopted the 1st respondent’s brief filed on 29/10/93 and urged the court to disallow the appeal. G. Ofodile-Okafor learned counsel for the 2nd respondent relied and adopted the 2nd respondent’s brief filed on 13/5/93 and urged the court to dismiss the appeal and affirm the decision of the lower court.
Regarding the 1st issue, it was submitted that having regard to Exhibit ‘N’, the conditions governing the loan as well as the fact that the 1st respondent was aware of the efforts being made by the appellant to obtain another loan from Allied Bank of Nigeria Ltd. to repay the loan in full, the 1st respondent was wrong in selling off the mortgaged property before the expiration of the five year repayment period and that the sale should have been set aside. It was submitted that the conditions contained in Exhibit “N” have not been complied with before the property was sold. It was further submitted that before the 1st respondent could exercise its right of sale under the Deed of Mortgage – Exhibit “G” there must be evidence to show that the building had been completed and let out to tenants and that the appellant had failed to comply with the repayment arrangement set out in Exhibit “N”. After considering the pleadings and the evidence adduced, it was submitted that the sale of the property by 1st respondent’s counsel to the 2nd respondent’s counsel ought to have been set aside by the lower court.
The 1st respondent on the other hand submitted that the contractual relationship between the appellant and the 1st respondent which formed the basis of this appeal was governed by the Deed of Mortgage Exhibit “L” and the terms and conditions of the letter of commitment – Exhibit “N”. It was submitted that by Clause 6 of Exhibit ‘L’, the 1st respondent retained the power of sale which became exercisable at anytime after the execution of the Deed of Mortgage. It was also submitted that the appellant instead of letting out the house after completion, he moved into the house together with his family. He has also defaulted in the payments of the instalments due in January 1984, January 1985, January 1986 and January 1987. It was submitted that since the appellant, has breached the terms of Exhibit ‘L’ and ‘N’ and that the 1st respondent has duly complied with the conditions of Exhibit ‘L’, the exercise of the power of sale by the 1st respondent was due and matured. The cases of Eka-Eteh v. N.H.D.S. Ltd. (1973) 6 S.C. 183 & Okafor & Sons Ltd. v. Nigeria Housing Development Society (1972) ECSLR 349 were relied upon.
The 2nd respondent submitted that the statutory power of sale conferred on the 1st respondent had arisen in the circumstances of the case By the terms of the agreement between the appellant and the 1st respondent, the appellant was to repay the loan in yearly instalments beginning from 1/1/84. As at 1987 when the power of sale was exercised, the appellant did not pay a single instalment. It was then submitted that where it is provided that repayment is to be made instalmentally, the power of sale arises once there is default in paying a single instalment. See S.O.N. Okafor & Sons v. Nigeria Housing Development Society Ltd. (1972) 3 ECSLR 349. It was further submitted that the trial Judge made a finding of fact that the appellant had completed building the house and had actually moved into the house. There is no appeal against this finding and as such this court should act on the basis of its correctness. It was also submitted that the fact that the appellant was negotiating another loan from a different bank was no excuse and could not stay the hands of the 1st respondent in exercising its power of sale.
It is not in dispute that the appellant applied to the 1st respondent for a loan of N35,000.00. The 1st respondent approved the loan on certain conditions. These conditions are contained in Exhibit “N” part of which reads:-
“Purpose: To enable you complete a residential building at Tudun Wada (GRA) Jos.
Security: Legal mortgage over your property situate at No. 12 Gboko Road Tudun Wada, Jos covered by Certificate of Occupancy No. BP 1422 to be stamped and registered to cover N35,000.00.
Repayment: From rental proceeds. 5 equal yearly instalments of N7,000.00 beginning January 1994. Expiry Date: 31st December 1988 – subject to annual review.”
In consideration of the loan granted to the appellant, he executed a Deed of Legal Mortgage over his property in favour of the 1st respondent. Clause 6 of the Deed of Legal Mortgage reads:-
“Section 20 of the said Act shall not apply to this security but the statutory power of the sale shall as between the Bank and Purchaser from the Bank he exercisable at any time after the execution of this security provided that the bank shall not exercise the said power of sale until payment of the monies hereby secured has been demanded in manner herein provided and the Mortgagor has made default for one month in paying the same but this proviso is for the protection of the Mortgagor only and shall not affect a purchaser or put him upon enquiry whether such default has been made.”
It could be seen that S.20 of the Conveyancing and Law of Property Act 1881 is not applicable to the Deed of Mortgage and that the Statutory power of Sale between the Bank and Purchaser can be exercised at any time after the execution of the Deed provided that the payment of the monies secured has been demanded and the mortgagor has failed to pay the monies within one month of the demand. In the instant case, repayment of the loan was to commence in January 1984. The appellant defaulted in the instalmental payment. On 28/9/84, the Bank demanded the payment of the monies secured, see Exhibit “C”, but the appellant failed to pay. On 20/11/85, the Bank again demanded the payment of the loan, see Exhibit “O”. Still the appellant defaulted. Again on 13/5/86 the Bank further demanded the repayment of the loan, See Exhibit “E”, and again the appellant failed to pay. In my opinion, the Bank’s Statutory Power of Sale became exercisable one month after Exhibit “C” was served on the appellant. The Bank in my view, has satisfied the condition stipulated in Clause 6 of the Deed of Mortgage before it exercised its power of sale. The appellant’s complaint that the house has not been completed and as such it couldn’t have been rented cannot hold. The appellant in Exhibit “D”, a letter he sent to the Bank dated 22/11/84, he admitted moving into the house with his family. Surely the house must have been completed before he could have moved in with his family. I will therefore answer the first issue that the 1st respondent was right in selling the property because the appellant defaulted in the instalmental, payments and the 1st respondents power of sale has become exercisable after the 1st respondent has demanded the repayment of the loan on three occasions and the appellant has failed to honour the demand.
On the second issue it was submitted that having regard to the shrouded circumstances in which there was private communication arranging the sale between the respondents ever before the public notice of the intended sale was issued, as well as the surreptitious secretive sale at a gross low price, the said sale is vitiated on grounds of collusion and/or bad faith. After considering the circumstances of the sale and the conduct of the 1st respondent’s counsel in the whole affair (not Mrs. Obot. It was another counsel). And that sale was actually conducted a day earlier than the advertised date and that the 1st respondent was aware of the appellant’s effort to pay the loan, it was submitted that the whole transaction concerning the purported sale of the appellant’s property was vitiated on grounds of bad faith and the trial Judge was in error in failing to set aside the sale.
The issue of fraud was then discussed in appellant’s brief under issue No. 2 I will discountenance all submissions on the issue of fraud because it has not arisen from any of the grounds of appeal bearing in mind that I have already struck out ground 5 as incompetent.
The 1st respondent submitted that the particulars of the allegation of bad faith and collusion were never pleaded and having not pleaded nor raised the issue of collusion or bad faith in the court below, it meant that the appellant did not prove same at the lower court. It was submitted that the appellant could not raise this issue without the leave of this court. It was submitted the 1st respondent has wide discretion as to how it conducted the sale. Halsbury’s Laws of England 4th Edition Volume 32 para 708 and the case of Nigeria Housing Development Society Ltd v. Mumuni (1977) 2 S.C. 57 were referred to. It was also submitted that the 1st respondent was not obliged to sell the mortgaged property at the dictates of or to please the appellant.
The 2nd respondent submitted that the appellant could not canvass this issue, because the issues were not pleaded. Since the appellant neither pleaded collusion, fraud or bad faith on the part of the respondents at the lower court, it was submitted that he could not raise the same issues in this court without the leave of this court. It was further submitted that what was not pleaded could not be proved and what was neither pleaded nor proved in the court below could not arise for determination in this court.
The issue of fraud was never raised at the lower court. However, the appellant by motion filed on 19/9/91 sought and was granted leave to argue new substantial issues not canvassed at the lower court. Accordingly the appellant was granted leave to file and argue two additional grounds of appeal. These two additional grounds were numbered “5” and “6”. Ground 5 deals with fraud and sale at a gross under value while ground 6 deals with the Governor’s consent. Earlier in this judgment, I have held that Ground 5 was incompetent. I struck it out. The appellant is thus back to square one. Even though he was granted leave to canvass the issue, he filed an incompetent ground of appeal.
The issue of bad faith was pleaded by the appellant. However the learned trial Judge found that the property was sold for the sole purpose of recovering the amount due. The trial Judge also found that the power of sale was exercised bona fide. I have considered the evidence adduced by the parties. The trial Judge’s finding is not perverse. There is no reason why the above finding should be disturbed.
With regards to collusion this is what the learned trial Judge said:-
“The allegation of collusion as aforesaid was not mentioned in the plaintiff’s amended statement of claim and no issues were joined thereon. The allegation was made in the closing submissions of the learned counsel for the plaintiff. In any case there was no evidence of collusion and even if there was the evidence could be ignored as it goes to no issue.”
I think the learned trial Judge is right in the above statement of the law. Since collusion was not pleaded any evidence adduced in that respect would go to no issue. I will therefore answer the 2nd issue that the said sale is not vitiated on grounds of collusion and or bad faith because collusion was not pleaded and bad faith was not established at the lower court.
I have already stated that I will discountenance issue 3. Issue 3 relates to ground 4 which has been struck out. I will therefore deal with the fourth issue. It was submitted that the effect of Sections 22 and 26 of the Land Use Act and the decision of the Supreme Court in the case of Savannah Bank of Nigeria Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) 305 is that the prior consent of the Governor must be first sought and obtained before a mortgagee can sell a mortgaged property, it was also submitted that the decision of this court in Moses Ola & Sons Ltd. v’. Bank of the North Ltd. (1992) 3 NWLR (Pt. 229) 377 should be overruled since it did not take into consideration the Supreme Court’s decision in Ajilo’s case (supra).
The 1st and 2nd respondents in their respective briefs each submitted that the sale was not void because the Governor’s consent was not first sought ands obtained. They all contended that the sale was void especially that the Governor’s consent to the assignment was subsequently obtained.
Section 22 of the Land Use Act, Cap. 202 Laws of the Federation of Nigeria 1990 provides:-
“(22) It shall not be lawful for the holder of statutory right of occupancy granted by the Military 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 Military Governor first had and obtained.”
Section 26 of the said Act also 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”.
It could be seen that by Section 22 of the Land Use Act it is unlawful to alienate a right of Occupancy howsoever without the consent of the Governor first had and obtained. The question now is – is a contract between an alienor and alienee void or voidable where no consent is first had and obtained? Is the Governor’s consent a condition precedent to the formation of a valid contract? In Solanke v. Abed (1962) N.R.N.L.R. 92 the Federal Supreme Court considered S.11 of the E Land and Native Rights ordinance Cap. 105 Laws of Nigeria, 1948 which is in pari materia with Sections 22 and 26 of the land Use Act. In this case the respondent, a holder of right of occupancy alienated the right to the appellant without the governor’s consent. The High Court held that the appellant could not maintain an action for trespass against the respondent since the alienation of the right was null and void. The Federal Supreme Court reversed this decision and held that the agreement was legal.
In Denning v. Edwards (1961) A.C. 245 the respondent instituted an action in the Supreme Court of Kenya against the appellant claiming specific performance of an agreement whereby the appellant agreed to sell a parcel of land to the respondent. The sale agreement was signed before the consent of the Governor was obtained. In considering the effect of S.88(1) of the Crown Lands Ordinance of Kenya which is similar to S.22 of the Land Use Act Privy Council held:-
“It has been argued that the consent of the Governor must be obtained before the agreement is entered into and that subsequent consent is insufficient. Some form of agreement is inescapably necessary before the Governor is approached for his consent. Otherwise negotiation would be impossible. Successful negotiation ends with an agreement to which the consent of the Governor cannot be obtained or reached. Their Lordships are of the opinion that there is nothing contrary to law in entering into a written agreement before the governor’s consent was obtained. The legal consequence that ensued was that the agreement was inchoate till that consent was obtained. After it was obtained the agreement was complete and completely effective.”
It is my firm view that an agreement to sell simpliciter is not unlawful. An agreement to sell, not being an agreement to sell even if the consent is withheld, is not unlawful by virtue of S.22(1) of the Land Use Act. This is buttressed by the provision of S.22(2) of the said Act which provides:-
“22(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 Military Governor in order that consent given by the Military Governor under sub-section (1) may be signified by
endorsement thereon.”
In Awojugbabe Light Industries Ltd. v Chinukwue (1993) 1 NWLR (Pt. 270) 485, the appellant contended that the Deed of Mortgage was null and void by virtue of S.22 of the Land Use Act because the Deed was executed before the Governor’s consent was obtained. After considering some decided cases and S.22 of the Land Use Act, Salami J.C.A. observed at pages 509-510 that:-
“There is nothing in the Act preventing prior execution of an instrument before an approach is made to the Governor for his consent. So that the provision that the consent of the Governor must first be had and obtained.. means no more than that the agreement entered into will remain inchoate until the Governor’s consent is sought and obtaineda6 Consenting to a sublease, mortgage, transfer of possession prior to the earlier drawing up an agreement is analogous to buying a pig in the poke.”
I agreed with the above observation. In my own contribution I endeavoured to state the issues decided by the Supreme Court in Ajilo’s case (supra) and distinguish it with the case. This is what I said at page 516:-
“Ajilo’s case can be distinguished from our present appeal in the sense that no consent was obtained in Ajilo’s case. In this case, consent was subsequently obtained. Moreover, the Supreme Court did not decide that a Deed which was signed before consent was obtained and the consent was later obtained is null and void. This was never an issue in Ajilo’s case.”
Also in Moses Ola and Sons Ltd. v. Bank of the North (supra) Musdapher J.C.A held at page 391:-
“The question of consent will only arise when the sale or auction has taken place in that case the appropriate authority may have to give consent before the purchaser could acquire a valid title. So the question of consent will only come when the sale has taken place.”
I think this is a correct statement of the law with which I respectfully agree. In my considered opinion, the combined effect of S.22(1) and (2) does not make an agreement to alienate without first obtaining the Governor’s consent void. It makes any agreement to alienate conditional upon obtaining the necessary consent. Before the consent is obtained the agreement is inchoate. After the consent is obtained the agreement becomes complete and effective.
In our present case the consent of the Governor was subsequently obtained. The agreement is complete and valid. My answer to this issue is that the fact that prior consent of the Governor was not first had and obtained before the sale agreement was concluded did not invalidate the sale moreso when the consent was subsequently obtained.
In the final analysis the appeal fails. It lacks merit. I dismiss the appeal and affirm the decision of the lower court. I award N500.00 costs to each of the respondents.
I now come to the cross-appeal. I have earlier stated that the 2nd respondent cross-appealed against the lower court’s refusal to award the counter-claim on rents claimed and mesne profit. The cross-appellant filed two grounds of appeal. He also filed a brief of argument in which he formulated two issues for determination. None of the respondents to the cross-appeal filed a brief. The issues identified by the cross-appellant for determination in this appeal are:-
“(1) Whether the learned trial Judge was right in refusing to enter judgment for the 2nd defendant/cross-appellant on his counterclaim for arrears of rent and mesne profits when the claim was neither denied nor contradicted, while at the same time granting the relief of possession?
(2) Whether the learned trial Judge was right in transferring the claim of arrears of rent and mesne profits to suit No PLD/J211/87 when there was no consolidation of suit No. PLD/J211/87 and PLD/J118/87 and when the plaintiff was not a party to suit No. PLD/J211/87.”
Mr. Ofodile Okafor adopted the cross-appellant’s brief and urged the court to allow the cross-appeal and enter judgment in favour of the cross-appellant in terms of the counter-claim for arrears of rent and mesne profit. It was submitted that since the trial Judge held that the cross appellant’s title to the property he rightfully purchased was not impeachable, the Judge was in error in refusing to enter judgment for the rents and mesne profits claimed. It was also submitted that the cross-appellant led uncontradicted evidence to establish the counter-claim for rents and mesne profits and as such he is entitled to judgment. In support the following cases were cited:- Nwahuoke v. Ottih (1961) All NLR (Part 2) 489; (1961) 2 SCNLR 232 and Omoreghe v. Lawani (1980) 3-4 S.C. 108. It was further submitted that since the respondent did not file a defence to the counter-claim and did not rebut nor challenge the claim in his evidence, the counter-claim is deemed established.
It was also submitted that the trial Judge was in error to transfer the counterclaim to a different suit when there was no consolidation of the two suit. It was further submitted that the trial Judge ought to have entered judgment for the appellant on his counter-claim and that since the respondent was not a party to the other suit, the matter could not be resolved in the other suit. It was contended that if the counter-claim was upheld, the same claims could not be maintained in suit No PLD/J211/87. The claims could be struck out or dismissed upon the application of Savannah Bank.
From the judgment of the lower court and the submissions contained in the cross-appellant’s brief, it is apparent that the cross-appellant was the plaintiff in suit No. PLD/J211/87. He sued the Savannah Bank claiming rent and mesne profits. The suit was before the same Judges. Being what the trial Judge called a sister case, the suit was adjourned pending the outcome of this suit. It was the opinion of the trial Judge that the issue of rent and mesne profits could not be conveniently dealt with in this case. She therefore transferred that head of claim to the other case.
In determining whether or not the learned trial Judge was wrong to have transferred the claim to another case, one must look at the circumstance of this case. The cross-appellant has sued the appellant herein – Z.Y. Haruna for rents and mesne profits in suit No. PLD/J118/87 i.e. the subject of this appeal. He then sued the 1st respondent herein – Savannah Bank for the same rents and mesne profits in respect of the same property in suit No. PLD/J211/87. The two cases came before the same Judge. The two cases are intertwined. The same facts gave rise to the two proceedings. If he succeeds in one case, it is unlikely that he would succeed in the other. The cross-appellant himself realised this for in his brief he submitted that if the counter-claim is upheld, the same claim could not be maintained in the other case. Taking all these into consideration, I share the view of the learned trial Judge that the two identical claims should be dealt with in one case. I also share her views that it would be more convenient to deal with the matter in the other case. In coming to this conclusion I am guided by the dictates of justice. The claim was not dismissed. It was just transferred. The cross appellant is not being denied his right to pursue his claim.
The cross-appellant’s complaints border on technicality. The courts are now interested in doing substantial justice shunning technicalities. See Esiri v. Idika (1987) 4 NWLR (Pt.66) 503; (1987) 1 All NLR 382 at 389 where Nnamani J.S.C. (of blessed memory) said:-
“It remains for me to say, substantial and well reasoned as this objection has been, it is nevertheless a further journey into the arena of technicalities. This court has resolutely set its face against them, preferring in numerous decisions of which Nojiu Surakatu v. Nigeria Housing Society Ltd. & Anor (1981) 4 S.C. 26 may be one of those marking the beginning of that stance to do substantial justice between the parties. The courts are courts of law but may the day never come when they cease to be courts of justice.”
The transfer of the claim to another suit, has not occasioned any miscarriage of justice. It has not denied the cross-appellant opportunity to pursue his right. In the circumstance, the cross-appeal also fails and it is hereby dismissed by me. I make no order as to costs.
The appeal and cross-appeal are hereby dismissed. I affirm the decision of the lower court. With regards to the appeal I award N500 costs to each respondent against the appellant. I make no order as to costs in respect of the cross-appeal.
Other Citations: (1994)LCN/0171(CA)
