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21ST JANUARY, 1977.

SUIT NO. SC 308/1974.

3PLR/1977/15 (SC)







  1. APENE



  2. F. O. OSAWARU



G.O.K. Ajayi ESQ. (with him N.E. Akporiaye ESQ.) – for Appellant

  1. A. Obi ESQ. – for the 1st Respondent

Dr. D. D. Mowoe – for 2nd Respondent



Civil Action – Banking – Overdraft facilities – Legal Mortgage of Property – Power of Sale under Mortgage Deed exercised – Writ of Summons to set aside sale – Issue of validity of Mortgage Deed raised for first time.



OBASEKI, J.S.C. (Delivering the Judgment of the Court):

The general rule adopted in this Court is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial Court (Shonekan v. Smith) 1964 All N.L.R. 168, 173) but where the question involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision of them, the Court will allow the question to be raised and the points taken (Shonekan v. Smith (Supra) Stool of Abinabina v. Chief Kojo Enyinadu (1953) A.C. 209 at 215) and prevent an obvious miscarriage of justice.

Guided by the above principles, we allowed the substantial points of law taken in this appeal to be argued before us although the points were not raised in the Court below – the High Court of Mid-Western (now Bendel) State of Nigeria Holden at Warri.

The appeal is against the judgment of Atake J. in suit W/31/71 delivered on the 30th day of March, 1973 in which the claim of the plaintiff/appellant was dismissed. The claims were in terms endorsed on the Writ of Summons as follows:

“(1)   A declaration that the purported sale by private contract on or about 18th January, 1971, by 1st defendant to 2nd defendant of plaintiff’s premises at 51, Obahor Street, Warri within the Warri Judicial Division pursuant to alleged power of sale contained in a mortgage deed registered as No 7 at page 7 in Volume 9 of the Land Registry Benin City is invalid for want of the proper and regular exercise of the power of sale and the absence of good faith in the exercise of the power of sale and at a gross undervalue.

(2)     An order setting aside for invalidity the purported sale of plaintiff’s premises referred to in (1) above.

(3)     An order of injunction to restrain 1st defendant from taking steps to convey plaintiff’s premises to 2nd defendant in pursuance of the purported sale referred to in (1) above and granting leave to the plaintiff to redeem his aforesaid premises upon paying to 1st defendant the moneys due under the mortgage referred to in (1) above.


As against 1st defendant only, £4,500 being damages for improper and irregular exercise of power of sale and for selling in bad faith and at an under-value.”

Pleadings were ordered, settled, filed and exchanged by the parties.

Evidence was adduced by the parties and their witnesses and in the course of the evidence the Mortgage Deed dated 2nd day of April, 1964 and registered as No. 7(at page 7 in Volume 9 of the Land Registry was admitted as Exhibit 1. It is obvious from the pleadings that both the plaintiff/appellant and the 1st defend-ant/respondent founded their claims and defence on this document. The plain-tiff/appellant did not however specifically plead ‘that the Mortgage Deed was void” and when this point was raised in the ground set out hereunder and argued before us, it drew a wave of protest from the two Counsel for the respondents.

Of the 3 grounds of appeal filed, it was ground 3 which raised the question and it reads:

“The learned trial judge erred in law in dismissing the plaintiff’s claim here-in when the mortgage deed under which the purported sale was made was absolutely void in law in that the consent of the Governor of the then Mid-Western State or of its Minister of Lands had not been obtained to the trans-action as required by the provisions of the Native Lands Acquisition Law Cap. 80 Laws of Western Nigeria then applicable in the Mid- Western State.


(1)     The mortgage deed Exhibit I was executed on the 2nd day of April, 1964;

(2)     The relevant consent required as at that date was that of the Governor or other appropriate functionary of the Mid- Western State;

(3)     The approval which had been obtained earlier from the Ministry of Lands and Housing, Western Region did not constitute an approval within the meaning of Section 3 of the Native Lands Acquisition Law applicable in the Mid-Western State on the 2nd day of April, 1964 when the mortgage deed was executed.

We may pause here to state briefly the fact of the case. The appellant’s full brother by name J. E. Akpene who was the plaintiff’s 1st witness in these proceedings in the Court below was a customer of the 1st defendant/respondent, an alien Banking Company registered in Nigeria. In 1963, he applied for overdraft facilities to the Limit of £1000.00 from the 1st respondent and presented the appellant as his surety. The appellant then offered his property at No. 51 Obahor Street, Warri as security for the overdraft and deposed by affidavit that the property was worth £2800.00.

A legal Mortgage Deed in respect of the property Exhibit 1 was drawn up. This Deed, embodying the proposed transaction was on the 7th day of January, 1964 presented for approval by the Minister of Lands and Housing, Western Nigeria and it was approved by someone on behalf of the Minister of Lands and Housing, Western Nigeria as shown by the approval endorsed on the Deed which reads: “APPROVED THIS 7TH day of January, 1964

Signed ? ? ? ?

for Minister of Lands and Housing, Western Nigeria.”

Subsequently, on the 2nd day of April, 1964, the appellant who is an illiterate executed the Deed, Exhibit 1.

Arising from this approval, the learned Counsel for the appellant contended before us that the whole transaction embodied in the document Exhibit 1 was null and void and of no effect by virtue of section 3(3) of the Native Lands Acquisition Law Cap. 80 L/WN 1959. This, he submitted, was because:

(1)     The approval was not obtained from the appropriate authority;

(2)     As at the date the approval was endorsed on the Deed, the Mid-Western Region had been created and excised from the Western Region; Warri Land area was part of the Mid-Western Region and no longer part of the Western Region;

(3)     That the appropriate authority to approve the transaction was the person vested with the executive authority of the Region or persons to whom he had so delegated his powers to give approval;

(4)     That the appropriate authority at the time of the approval was the Administrative Council of Mid-Western Region or the Commissioner in the Council to whom responsibility for land was assigned.

We were referred to the Mid-Western Region (Transitional Provisions) Act, 1963 to support this contention. Section 1 of that Act set up the Administrative Council consisting of the chairman styled Administrator of the Midwestern Nigeria, the deputy chairman styled deputy Administrator of the Midwestern Nigeria and members styled Commissioners of the government of Midwestern Nigeria (see subsections 2, 3 and 4 of Section 1 of the Act 1963 No. 19) who shall be charged with the general duty of administering the government of the Region until such time (not being later than the expiration of a period of 6 months beginning with the date of the establishment of the Region) as the Governor General may determine (sub-section 1(a) of Section 1 of the Act 1963 No. 19). The Midwestern Region was created by the Midwestern Region Act 1962, No. 6 which by Section 1 provides that:

“There shall be a New Region of the Federation which shall be known as Midwestern Nigeria and shall consist of the area specified in the Schedule to this Act”

The Schedule reads

“Benin Province including Akoko Edo District in Afenmai Division and Delta Province, including Warri Division and Warri Urban Township area” (Italics ours)

The birthday of the new Region was provided by Section 2(2) of the Act which reads:

‘This Act shall come into operation on such date as the Governor-General may by Order appoint’

Subsequently, in pursuance of section 2(2) of the Act the Governor-General appointed the 9th day of August, 1963 and this was notified by Legal Notice No. 96 of 1963 dated 12th day of August, 1963 on page B397, 1963 Laws of the Federation. The Midwestern Region of Nigeria therefore came into existence on the 9th day of August, 1963 and Warri Urban Township area and Warri Division were part of it.

Following the creation of the Midwestern Region of Nigeria, the functions of certain Western Region authorities who had hitherto exercised authority over the area were by Section 4 of the Midwestern Region (Transitional Provisions) Act, 1963 transferred to the Administrative Council and it reads:

“(1)   The Council may exercise in relation to the Region and to the exclusion of any other person, any function which immediately before the appointed day was a function of the Governor of Western Nigeria or any Minister of the Government of Western Nigeria or the Public or Judicial Service Com-mission of the Western Nigeria; and subject to the provisions of any directions given by the Prime Minister under section 1 of this Act, the Council shall act in accordance with its own deliberate judgment in performing the functions exercisable by the Council by virtue of this subsection.

(2)     All existing law shall have effect subject to the modifications necessary to bring it into conformity with the provisions of the foregoing subsection.”

Subsequently, the constitution of Mid-Western Nigeria Act, 1964 was passed and in respect of certain matters to enable elections to the House of Assembly to be conducted, it came into force on the 1st day of November, 1963 (see section 3(1) of the Act) and in respect of other matters it came into force on the 7th day of February, 1964 (see section 3(3) of the Act and L. N 70(1964). Therein provision was made for the establishment of a legislature as well as for the appointment of a Governor in whom shall be vested the executive authority of the Region. In this respect, Section 4 of the Constitution provides that ‘There shall be a legislature for the Region which shall consist of the Governor, a House of Chiefs and a House of Assembly and which shall have powers to make laws for the peace, order and good government of the Region,” and Section 32(1) of the Constitution provides that ’the executive authority of the Region shall be vested in the Governor and subject to the provisions of this Constitution may be exercised by him either directly or through officers subordinate to him.”

The plaintiff/appellant is a Nigerian and this is admitted in the pleadings. The 1st defendant/respondent is a body corporate and an alien within the provisions of the Native Lands Acquisition Law Cap. 80, Laws of Western Region 1959. To acquire any interest or right in or over land from a Nigerian in the Midwestern Region, the 1st defendant/appellant must comply with the provisions of section 3 of the Native Lands Acquisition Law Cap. 80 subsections 1, 2 and 3 of Section 3 of the Native Lands Acquisition Law Cap. 80 form the basis of the objection to the judgment of the learned trial judge. These sections declare any transaction or instrument requiring approval of the Governor null and void and of no effect if the approval required is not obtained and the transaction is not exempted from the requirement of approval. More particularly, the section reads:

(1)     Except as provided by any regulations or Orders made pursuant to section 7, no alien shall acquire any interest or right in or over any land from a native unless the transaction under which the interest or right is acquired has been approved by the Governor in accordance with the provisions of this Law.

(2)     Except as provided by any regulations or orders made pursuant to section 7, were any such interest or right has been lawfully acquired by an alien, that right shall not be transferred, alienated, demised or otherwise disposed of to any other alien, or be sold to any other alien under any process of Law, without the approval of the Governor of the transaction or sale, as the case may be in accordance with the provisions of this law.

(3)     Any agreement and any instrument in writing or under seal by or under which an alien purports to acquire any interest in or right over any land (other than a right or interest acquired pursuant to any regulations or order made under subsection (1) or subsection (2) of Section 7) and which forms part of or gives effect to a transaction that has not been duly approved in accordance with the provisions of this law shall be void and of no effect.”

The short point raised by the learned Counsel for the appellant is that the 1st defendant/appellant did not comply with the provisions of subsections 1 and 3 of section 3 of the Native Lands Acquisition Law and as such acquired no interest or right in the 51 Obahor Street, Warri, the land and house of the plaintiff/appellant.

As at the 7th day of January, 1964, the date Exhibit 1 bears as the date the trans-action evidenced thereby was approved by someone on behalf of the Minister of Land and Housing, Western Nigeria, the Governor and Ministers of the Government of the Western Region of Nigeria had ceased to exercise any executive function in relation to the area comprising Midwestern Region of Nigeria and any purported exercise of any function being without any legal or constitutional authority was null and void and of no effect.

By virtue of section 4(2) of the Midwestern Region (Transitional Provisions) Act, 1963, No. 19, wherever the word ‘Governor’ or’ Minister’ occurs in the Native Lands Acquisition Law, the words Administrative Council was to be read and it thus be-came obvious that at the material date the appropriate authority to approve any transaction under the Native Lands Acquisition Law was the Administrative Council. However, as from 7th February, 1964, when the Constitution of the Midwestern Nigeria came into force and a Governor, Premier and Ministers appointed, the power became vested in the Governor and, by delegation from the Governor, in the Minister of Lands. Approval of the transaction could still have been regularly obtained from the Governor or from the Minister of Lands but no effort was made before execution.

The Mortgage transaction and the Deed Exhibit 1 not having received any approval from the Administrative Council or Governor or Minister of Lands of Mid-western Nigeria, the transaction and the Mortgage Deed are null and void and of no effect. The respondents’ Counsel conceded that the document required approval or no approval was a triable issue and that it should have been raised on the pleadings and not having been raised it was incompetent of the appellant to raise it.

We observed from the pleading that the plaintiff/appellant made the Mortgage Deed Exhibit 1 the basis of his claim while the 1st defendant/respondent founded his defence on it. The Deed was therefore continuously under the searchlight at all material times since the institution of this action and whatever opinion as to its validity the parties may have held, we are unable to accept the proposition that the founding of the plaintiff’s/appellant’s case and the plaintiff’/respondents’ case on the Deed Exhibit 1 conferred on the Deed the validity it did not have under the law, more so as the law declares it null and void and of no effect. In the words of Lord Denning:

“If an act is void, then it is in law a nullity.   It is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is auto-matially null and void without more ado, though k is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” (Per Lord Denning in Macfoy v. United Africa Company Ltd. (1961) 3 W.L.R. 1405 PC at 1409)

The learned Counsel for the respondents in a desperate effort to save their case finally referred the Court to Section 11 of the Land Instruments Registration Law Cap. 56 Laws of Western Nigeria 1959 applicable in the Midwestern, now Bendel State, which reads:

“No instrument requiring the consent of the Governor or of any public officer to the validity thereof shall be registered unless such consent is endorsed thereon or the registrar is otherwise satisfied that such consent has been given.”

They further submitted that since the deed was duly registered by the registrar of Deeds, the presumption created or raised by Section 11 of the Land Instrument Registration Law that the Registrar has satisfied himself that consent has been obtained has not been rebutted. This Court has previously held that it is not prepared to read the word ‘approve’ in the Native Lands Acquisition Law as consent and we see no reason to depart from that view in this appeal. In any case, section 26 of the same Cap. 56 provides that – “Registration shall not cure any defect in any instrument, or subject to the provisions of this Law, confer upon it any effect or validity which it would not otherwise have had.”

Coker, J.S.C. delivering the Judgment of the Court in Quo Vadis Hotel and Restaurants Ltd. v. Commissioner of Lands, Midwestern State and others 1973, 6 S.C. 71 said at page 93

“We are of course not prepared to read the word ‘approve’ as consent. The learned trial judge himself spotlighted the enormity of the difference between them and it is ridiculous to equate consent which should be previous to an act or deed and so expressed on a document with an “approval” which should come subsequently and is so expressed on the document.”

We find great merit in the only Ground of Appeal argued before us.

The point of objection has been made out. Exhibit 1 on which the sale of the premises to the 2nd defendant/respondent was made is null and void and of no effect and consequently, the sale transaction founded on it cannot stand as there would have been no power to sell.

The appeal is allowed.

The judgment together with the order as to costs delivered by Atake J. in suit W/31/71 on the 30th day of March, 1973, at Warri High Court is hereby set aside and in its stead there shall be entered a judgment in favour of the plaintiff/appellant in the following terms:

(1)     The sale by private contract of the plaintiff’s/appellant’s premises at 51 Obahor Street, Warri to the 2nd defendant/respondent is hereby declared null and void and hereby set aside;

(2)     The 1st defendant/respondent is hereby restrained from executing a conveyance (in respect of the said sale) of the said premises to the 2nd defendant/respondent;

(3)     The plaintiff/appellant shall be paid costs in the High Court assessed at N175.00.

And this shall be the judgment of that Court.

The plaintiff/appellant is entitled to costs in this Court which we assess at N180.00.

Appeal allowed.


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