Author: Dr. Alex A. Izinyon, SAN, Ph.D, OFR
The subject matter of land is very crucial to mankind from recorded history all over the world. It is a priceless possession. It’s prime importance in society and in the hands of individuals, families, communities are of high premium hence any attempt to temper or infringe on this proprietary right have been visited with serious repercussions ranging from physical attack, riot, arson, communal crises and endless arduous litigation.
However, in Nigeria in 1978 all land in the Federal Republic of Nigeria were now vested in the Governors of each State on behalf of its citizens. This was the birth of the Land Use Act, 1978. Section 1 of the said Act, states:
“1. Vesting of all land in the State
Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation is hereby vested in the Governor of that State, and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.”
Before now was the Land Tenure Law of the Northern Region, 1962 that was operative in the whole of the Northern Region of Nigeria. Therefore, the Land Use Act, 1978 became the National Legislation regulating the Land and its possession for the whole of Nigeria.
One significant burning issue flowing from the said Act are Sections 22 & 26 of the Act. The Sections provides:
“Prohibition of alienation of statutory right of occupancy without consent of Governor
(1)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 thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained:
Section 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 the Act shall be null and void.”
The economic reality of the possession of the Statutory Right of Occupancy or Customary Right of Occupancy is that it is a veritable tool for wealth creation by its holder. By this the holder can give it as security to secure loans or mortgages or outright sale as the holder wishes and as the economic realities demand. On the other hand the banks and other financial institutions will demand as valid proof of ownership of the said land the provision and evidence of the Certificate of Occupancy as collateral for security for the loans or mortgages.
Therefore the end result between the holder and the financial institutions often crystalized in a legal instrument in capturing the scenario. Most often are mortgages between the financial institutions and the holders of the Certificate. The legal issue has been whether the consent of the Governor provided under Section 22 mentioned above was first had and obtained to avoid the consequences under Section 26 that makes the entire transaction void if not first had and obtained. By this any such transaction without the consent of the Governor being first obtained is declared null and void by the Land Use Act under Section 26. Since the coming into operation of the Land Use Act, the operational modalities relating to obtaining consent of Governor are usually nightmares for holders of such Certificates as the procedural wrangles, bottleneck, red tapism, under hand play, time consuming, to mention a few are common place. This is despite the measures put in place by the various States to make procedures for obtaining such consent seamless, less cumbersome, less expensive and time serving.
In this seemingly macabre economic atmosphere, some transactions such as mortgages were consummated without the prior consent of the Governor of the State. No doubt Section 26 of the Act renders such transaction void. In such circumstance what is the fate of the financial institution who have parted with her money to the certificate holder – the customer who did not obtained the said consent and the bank now want to exercise the right to foreclose the property and sell?
Was the financial institution not supposed to do the due diligence to ensure the said consent was duly obtained by the said customer before parting with the said money? After all the financial institutions have Legal Departments who ought to know better? On the other hand, was the customer who was supposed to obtain the said consent but for inexplicable reasons best known to him did not but was given the facility, waiting to unleash and invoke Sections 22 and 26 of the Land Use Act on the day of reckoning, as a defense?
He quibs the said provision is like the rock of Gibraltar that cannot be moved.
The above scenario has been the battle between the financial institutions and the customer – certificate holder even before the Land Use Act of 1978. The first reported case of the above scenario was under the Land Tenure Law in the Northern Region of Nigeria in 1962. That is the celebrated case of SOLANKE V. ABED & ANOR (1962) LPELR 25155 (SC) OR (1962) ALL NLR, 230. In that case Reed J. dismissed Appellant’s claim for damages for trespass by his landlord on the ground that the alleged Tenancy Agreement was null and void under Section 11 of the Native Region Law (Cap 105 of the 1948). The contention of the Appellant is that by the Tenancy Agreement between him and the Plaintiff, same was null and void since the required Governor Consent was not obtained before the alienation of the Right of Occupancy. The trial Judge agreed with this submission and dismissed the action. Dissatisfied, Appellant appealed to the Federal Supreme Court then coram; Ademola, JSC (as he then was), Unsworth, JSC, Taylor, JSC. The issue before the Federal Supreme Court was whether the Defendant was entitled to take advantage of his own wrongs as against the Plaintiff and alleged that the agreement was null and void by failure of obtaining the Governor’s consent.
The Federal Supreme Court allowed the appeal and remitted the case to be heard before another Judge. Unsworth, JSC delivering the lead Judgment made a firm distinction between where the statute declared the said contract illegal and void. The doctrine of void and voidable was invoked in the circumstance that the contract was illegal but was only voidable not only because of the penalty for the breach but only unlawful on ground of interest of the public of policy.
Twenty-seven years later, the same scenario occurred in the celebrated case of SAVANNAH BANK OF NIGERIA LTD. & ANOR. V. AMMEL O. AJILO (1989) 1 NWLR (PT. 97) 135.
In SAVANNAH V. AJILO as often referred to, AMMEL AJILO as first Plaintiff stood for the second Plaintiff as surety for a bank loan granted by the SAVANNAH BANK NIG. LTD. the 1st Defendant. The bond was secured by a mortgage deed made by the first Plaintiff in favour of the 1st Defendant the SAVANNAH BANK. There was also a deposit of title deed for the mortgage property which the 1st Plaintiff agreed in 1965. The 2nd Plaintiff defaulted in the repayment of the loan and the 1st Defendant – the bank took steps to realize the security under the mortgage. The Plaintiff took out a Writ of Summons contending that by virtue of Sections 22 & 26 of the Land Use Act, the entire transaction was void. The trial court found for the Plaintiff and held that the mortgage was void by virtue of Sections 22 & 26 of the Land Use Act and therefore the Bank cannot exercise the power of sale. The Court of Appeal on appeal by the Defendants dismissed the appeal and affirmed the findings of the trial court. The Defendants then appealed to the Supreme Court. The full court of the Supreme Court dismissed the appeal and held that the consequence of the breach of Section 22 of the Act is expressly stated to be null and void by virtue of Section 26 of the Act.
Although it was a unanimous Judgment, but Belgore, JSC’s Judgment it is submitted concurring Judgment was a technical dissent in that the noble lord took a swipe on the Land Use Act which replaced the Land Tenure Law of Northern Nigeria, 1962.
His lordship though agreed with the lead Judgment that the case was caught by Section 22 of the Land Use Act as it relates to the interpretation of Sections 34 and 22 of the Act, his lordship pointed out the equity of the case was not considered. His lordship put this thus:
“The feature of this appeal is that the issue based on the grounds of appeal has been confined within narrow limits of interpretation of S. 34 and S. 22 of the Act. This is unfortunate as this Court must confine its decision to the argument of the parties to do otherwise will amount to raising issues, suo moto for the parties. Otherwise, all the equities were not canvassed. Decisions in such cases as Esi v. Moruku XV N.L.R. 116, based on Public Lands Acquisition Ordinance 1903, the Uganda case of Singh v. Kulubya
- 33 PC 67, the Nigerian case of Solanke v. Abed
- N.R.N.L.R. 92, or Orijiako v. Orijiako (Unreported
JD/27/1955 a High Court, Jos case). Mamiso v. Pate (1971) N.N.L.R. 62 (also a High Court, Kaduna case would have been canvassed. Perhaps counsel will one day move further than this narrow confine this Court has been placed in this case.” (Emphasis mine)
SAVANNAH BANK V. AJILO (SUPRA) held sway and cause a lot of discomforts and losses to the financial institutions at the jubilation of the defaulters travellers who have clinged on legal technicality and celebrate their exploits following this case. Other cases numerous to list here, followed SAVANNAH V. AJILO.
After SAVANNAH V. AJILO, in 1989, seven years later the Supreme Court had an opportunity again to revisit SAVANNAH V. AJILO in the case of UGOCHUKWU V. CO-OP. & COMM. BANK (NIG) LTD. (1996) 6 NWLR (PT. 456) 524. In that case the Appellant a customer of the Respondent as a result of the overdraft facility granted by the Respondent, both entered into a legal mortgage secured by the Appellant’s property at No. 239 Cameroun Road, Aba. There was default and the bank informed the Appellant of her intention to exercise her power under the Mortgage Deed and sell the said property, Appellant then sued at the High Court.
The main argument of the Appellant was that the consent was void in that it was given by the Commissioner instead of the Governor. What was in issue here was Section 45 of the Land Use Act. The said Section 45(1) states:
“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, and not being inconsistent with the provisions, or general intendment, of this Act as the Governor may specify.”
The said court gave Judgment for the Appellant. On Appeal, the Judgment was set aside. On further appeal to the Supreme Court, the appeal was dismissed. The Supreme Court rightly held that by virtue of Section 45(1) of the Land Use Act, the Governor can delegate his power to State Commissioner and therefore the delegated power to the Commissioner was in order by the Legal Notice No. 4 of 1979. Belgore, JSC (as he then was) who presided has opportunity to revisit his lamentation in SAVANNAH V. AJILO at page 540, paras. E – F when he said:
“The holder of a right of occupancy, evidenced by a certificate of occupancy, is the one to seek consent of the Governor to alienate, transfer, mortgage etc. There is no doubt the consent given on Exhibit 3 was at the instance of the appellant who was in need of fund from the respondent by way of mortgage. It is not from him one must hear that the consent he obtained was void. Solanke v. Abed (1962) 1 SCNLR 371; (1962) 1 ALL NLR 230; Oilfield Supply Centre v. Johnson (1987) 2 NWLR (Pt. 58)
625; Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) 305. The appellant, being the holder of the right of occupancy over the house, i.e. No. 239 Cameroun Road, Aba, was to seek consent of the Governor he obtained was flawed, having received valuable consideration i.e. the loan, from the respondent.”
Ogundare, JSC at page 542, paras. F – H put it also purgently thus:
“Further on plaintiff’s claims A and B, it was the duty of the plaintiff, as mortgagor, to seek the consent of the Governor for him to mortgage his property to the defendant. That is what the law says – See: The Land Use Act. For him to turn around a few years after executing the mortgage deed (and when as a result of his default the mortgagee, that is, the defendant sought to exercise its rights under the Governor’s consent, is, to say the least, rather fraudulent and unconscionable. It has become a vogue these days for mortgagors in similar circumstance to fall upon the decision of this court in Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305 as a vehicle to escape from their liability under the mortgage deeds they have entered into. I think that is an unfortunate development and I do not think that that case, that is, Savannah Bank v. Ajilo (supra) decides such a thing. In any event, I hope someday the court will have an opportunity to revisit that case. To allow a mortgagor to resile from his liability on the ground of his failure to do that which the law enjoins him to do will only result in paralysis of economic activities in this country. The court, I dare say, will not allow such a situation to arise.”
With respect the above were obiter and not the ratio of the case, as the interpretation of Section 45(1) of the Land Use Act which was correctly decided and different from the facts in SAVANNAH V. AJILO, was the issue.
Indeed, the obiter of Ogundare, JSC (of blessed memory) said so, “I hope someday this court will have the opportunity to revisit that case.”
This case with respect did not overrule SAVANNAH V. AJILO.
This was the position for many years and followed by many other cases. Attempt was made 18 years later in UNION BANK OF NIGERIA PLC & ANOR. V. AYO DARE & SONS (2007) 13 NWLR (PT. 1052) 567 to revisit the equity proposed by Belgore, JSC (as he then was) in SAVANNA BANK V. AJILO (SUPRA) and UGOCHUKWU V. CCB LTD. (SUPRA).
In UNION BANK V. AYO DARE, the 1st Respondent company obtained loan from the 1st Respondents and secured by the 1st Respondent and the 2nd Respondent who was the Managing Director. Two properties were tendered by the Respondents as security one in Lokoja and the other in Kabba all in Kogi State. The deed of legal mortgage was executed by both parties, after obtaining the consent. The Respondent defaulted in the repayment and the 1st Appellant instructed the 2nd Appellant to advertise the property for sale to realize the secured loan. The 1st and 2nd Defendants took out a writ of summons. The gravermen of the Plaintiffs was that the purported consents where invalid in law on two grounds. The property D1 Mortgage property was covered by a Statutory Right of Occupancy. The consent granted was signed by an Ag. Chief Land Officer for the Permanent Secretary who acted for the Honourable Commissioner for Land and for the Governor.
The Plaintiff’s case was that the said consent was void as it was caught by the principle of delegatus non postest delegare as the Act allows delegation of power from the Governor to the Commissioner for Land and no more as the Commissioner for Land cannot sub delegate to the Permanent Secretary who in turn sub delegated to the Ag. Land Officer who signed the consent letter. It was caught by double delegation. On Exhibit D2, the legal mortgage property was covered by a Customary Right of Occupancy issued by Kabba Local Government Authority but the requisite consent was signed by the Ag. Land Officer for the Permanent Secretary and Director of Land for Director-General respectively. Again the argument of the Plaintiff was that the consent was void on double barrel grounds. The first is the delegatus rule in Exhibit D2 and the second ground is neither the Governor nor the Commissioner can grant consent on Customary Right of Occupancy and that such is regulated by the Local Government Area and the Chairman or appropriate authority so appointed by him. The trial court found for the Plaintiffs. The appeal to the Court of Appeal by the Defendants was dismissed and the finding of the trial court per Fabiyi. J. (as he then was) affirmed. On further appeal to the Supreme Court, the case of Savannah Bank v. Ajilo was revisited as sought ythe Appellants.
In a split Judgment of 4 – 1 the Supreme Court dismissed the appeal and agreed on the fronts canvassed by the Respondents on Exhibit D1 and Exhibit
D2 and further applied and followed Savannah Bank v. Ajilo (supra). However, the dissenting Judgment of my noble lord Onnoghen, JSC (as he then was) is remarkable. His lordship invoked equity in the circumstance, after all He who comes to equity must come with clean hands. He posited at PAGE
615, PARAS. B – D relying on his earlier decision in NIDB V. OLALOMI INDUSTRY LTD. (2002) 5 NWLR (PT. 761) 532 AT 547 – 548:
“It is my view that to hold that the document attached to exhibit I does not constitute evidence of the fact that the appropriate authority did approve the transaction as held by the learned trial Judge is to be very technical particularly having regards to the fact that it was the respondent who applied for the consent or approval and did present same for the purpose of obtaining the loan which he duly utilized only turning around, when called upon to repay same with interest as previously undertaken, to say that there is no approval to the transaction.
Where there is anything or evidence from which the Court can infer such an approval under the circumstances, it is my view that it will be in the interest of justice to do so rather than allow the mortgagee to eat his cake and still have it back.”
The majority Judgment in SAVANNAH V. AJILO relied upon in UNION BANK V. AYO DARE & SONS & ANOR. held sway for another 11 years until 2018 in the recent case of ILORI ORS. V. ALHAJA ISHOLA & ANOR. (2018) 15 NWLR (PT. 1641) 77. The facts of this case are a little similar to the fact in SOLANKE V.
ABED (SUPRA), SAVANNAH BANK V. AJILO and UNION BANK V. AYO DARE & SONS & ANOR. In this case by a writ of summon at the Lagos High Court, the Appellants who were claimant of one Festus Olanipekun Ilori (deceased) claiming against one Alhaja Sule Raji (who died and was substituted by the 1st Respondent) claiming various declaratory reliefs and injunctions. The crux of the Plaintiff’s case at the trial court is that they discovered in 1993 that the said Raji through his Solicitor applied to the land officer of Lagos State for Governor’s consent to the assignment of the property given to him by their late father and the Governor’s consent was granted “in principle”. They contended that it was the late Raji their father who applied for the consent and to that extent the consent was null and void. They contended that the signature of the Deed of Assignment was not that of their father. On the other hand, the Respondents contended that sometime in 1982, the late Festus Olanipekun Ilori who was his friend approached him that he wants to sell the land in dispute and the uncompleted building for the sum of N165,000.00. In September, 1982, he handed the Certificate of Occupancy in respect of the property to him and a Deed of Assignment was executed on 17th September, 1982. The said Deed was duly executed and the N165,000.00 was paid and was then stamped in 1983, and then the Respondent deposited the title with Merchant Bank for Africa Ltd. to secure the facility which was granted to him.
It was the bank in order to protect their interest that then went to process the Governor’s consent for the Deed of Assignment and the approval for the Governor’s consent. He contended that at the time of the application, the assignor was dead at the time of the application and that the Land Registry was informed by Affidavit. He contended that the Governor’s consent was lawful.
The trial Judge found for the Plaintiff and granted all the reliefs. Dissatisfied the 1st Respondent appealed to the Court of Appeal which allowed the appeal and dismissed the Appellants’ claim. Aggrieved the Appellants appealed to the Supreme Court. The Supreme Court dismissed the appeal and affirmed the Judgment of the Court of Appeal. The Supreme Court took position different from SAVANNAH BANK V. AJILO and UNION BANK PLC V. AYO DARE & SON lines of cases.
The Supreme Court position was based on the provision of Section 22(1) and Section 26 of the Land Use Act. It is clear from the case that the Supreme Court was of the view that the Land Use Act, 1978 does not prohibit the holder of a Statutory Right of Occupancy from entering into some form of negotiation which must end with a written agreement for presentation to the Governor for his consent so long as such written agreement is understood and entered into “subject to the consent of the Governor” In such case it is not a contravention of Section 22(1) and Section 26 of the Land Use Act as Exhibit 2 showed the agreement was made subject to the Governor’s consent. The Supreme Court relied on her earlier decision in AWOJUGBAGBE LIGHT IND. LTD. V. CHINUKWE (1995) 4 NWLR (PT. 390) 379, INTERNATIONAL TEXTILE LTD. V, ADEREMI (1999) 8 NWLR (PT. 614) 268. This is excellent and correct position of the law as espoused by the law lords.
However, the concurring Judgment of the mercurial and cerebral Jurist Nweze, JSC added a dimension on the cases of the SAVANNAH BANK V. AJILO, UNION BANK PLC V. AYO DARE where he invoked the equity position as a saving valve at PAGES 100 – 101, PARAS. D – D thus:
“As shown in the leading judgment, part of the arguments of the appellants was that the Governor’s consent to the assignment under consideration in this appeal was not obtained prior to the transaction as required by the Land Use Act, citing sections 22 and 26 of the Act; Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97)303, 307; UBN Plc v. Ayodare and Sons Nig. Ltd (2000) 111 NWLR (Pt.679) 644, 655.
Again, as show in the leading judgment, the evidence of the appellants’ own witness was that all necessary requirements for obtaining the Governor’s consent to the agreement between the parties had been fulfilled. This is the background to the reasoning of the lower Court at pages 404 – 405 of the record.
Listen to this eloquent reasoning:
Late llori undertook to obtain the consent of the Governor. He benefited from the transaction but failed or neglected to do so before his death. It is not open to the representatives of his own estate to seek to nullify the transaction on the basis of non – procurement of the Governor’s consent or invalid or irregular consent of the Governor. The late llori, as the holder of the certificate of occupancy had the duty to apply for the Governor’s consent. It is morally despicable for a person who has benefitted from an agreement to then turn round to allege that the agreement is null and void, Adetuyi v. Agbojo (1997) 1 NWLR (Pt. 484) 705; Ibekwe v. Maduka (1995) 4 NWLR (Pt. 392) 716; Solanke v. Abed (1962) NRNLR 92 (1962) 1 SCNLR 371; Adedeji v. National Bank (1989) 1 NWLR (Pt 96) 212. (Italics supplied) Now, this Court in Ugochukwu v. CCB Ltd (1996) 7 KLR (Pt. 43) 1267, 1286, (1996) 6 NWLR (Pt. 456) 524 (per Ogundare, JSC), was emphatic that Savannah Bank v. Ajilo (supra) never laid down any prescription that a person could escape liability in the circumstances described above, that is, that the doctrine of equity should permit a person to take advantage of his own wrong in failing to obtain the consent of the Governor.
That notwithstanding, some Justices of this Court continued to peddle Savannah Bank v. Ajilo (supra) as authority for that proposition, see for example, UBN Plc v. Ayodare and Sons Nig. Ltd (supra), (2007) 4 KLR (Pt. 235) at 2022; 2024 and 2027, (2000) 11 NWLR (Pt. 679) 644.
Indeed, at page 1286 of the report (Ugochukwu v. CCB Ltd, supra), speaking of the liability of a mortgagor, Ogundare, JSC explained at page 542, paras. G-H that:
‘It has become a vogue these days for mortgagor in similar circumstances to fall upon the decision of this Court in Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305 as a vehicle to escape from their liability under the mortgage deeds they have entered into. I think that (this) is an unfortunate development and I do not think that case, that is Savannah Bank v. Ajilo (supra) decides such a thing. In any event, I hope that someday this Court will have an opportunity to revisit that case. To allow a mortgagor to resile from his liability on the ground of his failure to do that which the law enjoins him to do only result in paralysis of economic activities in this country. This Court, I dare say, will not allow such a situation to arise.” (Emphasis mine)
From the above, the cloud is still hazy. It is not yet settled. The die is not cast yet. It is clear from the obiter of the erudite Jurist, Nweze, JSC that the battle is not over yet. Leaving Solanke V. Abed aside since it was decided under the Land Tenure Law of the Northern Nigeria before SAVANNAH BANK V. AJILO and UNION BANK V. AYO DARE what then is the correct or true position? One side of the divide says law is law, the Land Use Act must be obeyed. It never admits of no equity as the Land Use Act is statutory and Equity is Common Law and Common Law cannot usurp statutory provision. Indeed, the Court in UNION BANK OF NIGERIA V. AYO DARE another notable jurist of epic proportion Oguntade, JSC delivering the lead Judgment put it succinctly thus at page 596 – 599:
“But the matter goes beyond that. The defendant had pleaded that the plaintiffs procured and gave it (the defendant) exhibits 1 and Dl 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 Dl 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, sub-lease 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, in fact, 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 noti oritur actio. The court said at page 324 of the report:
‘Although the 1st plaintiff/respondent by the tenor 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 actio’ 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.) Ltd. 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 actio. 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.” (Emphasis mine)
The Supreme Court case of SAVANNAH V. AJILO, UNION BANK V. AYO DARE & ANOR were not overruled in UGOCHUKWU V. CCB LTD. neither were they overruled in the cases of ILORI V. ISHOLA. There cannot be implied over ruling of the decision of the Supreme Court. It is settled principle that Supreme Court overruling itself is not a tea party.
It involved the composition of a full court to decide when to overrule itself and not by implication. See the case of ADEGOKE MOTORS LTD. V. ADESANYA (1989) 3 NWLR (PT. 109) 250 AT 274-275, PARAS. H-A, PER OPUTA J.S.C held thus:
“When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be over-ruled. This Court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere, in error. Learned counsel has not asked us to over-rule either Skenconsult or Ezomo supra. If that was what was wanted, the Briefs should have said so specifically and the Chief Justice of the Federation would have gladly empanelled a Full Court”
(Underling for Emphasis)
In all these cases only SAVANNAH V. AJILO had a full court of 7 Justices of the Supreme Court. All other cases UGOCHUKWU V. CCB, UNION BANK V. AYO DARE, and ILORI V. ISHOLA were the normal coram of 5 Justices. The input of a full court opinion on a matter cannot be wash aside in our jurisprudence. See ODI V. OSAFILE (1985) 1 NWLR (PT. 1) 17 AT 34 PARAS. C – D the Supreme Court Per Obaseki, J.S.C held thus:
“Turning to the first question, there is unanimity and I hold very strong views on it that the Supreme Court, as a court at the apex of the judicial hierarchy in this country has the jurisdiction and power, sitting as full court of seven justices to depart from and overrule previous erroneous decisions on points of law given by a full court on constitutional questions or otherwise.”
See also MAITUMBI V. BARAYA (2017) 2 NWLR (PT. 1550) 347 AT 416417 PARAS H – C (PER GEORGEWILL JCA), the Court of Appeal held:
“In law, therefore, while the decision of the full court of this court constituted of five justices is a very weighty one and so accorded the much due respect by this court when constituted of three justices, it does not render the Court of Appeal constituted of three justices an inferior court to the full court of this court for the purposes of the application of the time honoured doctrine of stare decisis as was so errorneously but vehemently contended by the appellants’ counsel in the appellants’ reply briefs. See Young v. Bristol Aeroplane Co. Ltd. (1944) 2 AllER 293. See also Milangos v. George Frank Textiles Ltd. (1975) 3All ER 801; Amimike Investments Ltd. v. Ladipo(2008) 45 WRN92; Achebe v. Nwosu (2012) FWLR (Pt. 106) 1000; Odugbo v. Abu (2001) 14 NWLR (Pt. 732) 45; Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377.” (Emphasis mine)
SAVANNAH V. AJILO is still alive followed by the sister case of UNION BANK V. AYO DARE. All are still alive they can bite and sting.
It must be pointed out the Land Use Act is a special piece of legislation which has constitutional flavour under Section 315(5)(a) of the Constitution. It cannot be altered or amended without following the procedure enshrined in Section 9(2) of the Constitution.
Therefore, I submit the doctrine of equity take a sleeping position when the Land Use Act provisions are at play.
This is because equity is a Common Law provision and cannot override statutory provisions of the Land Use Act which has affinity in legal constitutional consanguinity. It is like some provisions of the Electoral Law and procedure that would not admit of equity. This is what the Supreme Court said in ANPP V. GONI (2012) 7 NWLR, (PT. 1298) 147 AT 183, PARA. E the Supreme Court held:
“It is my considered view that the provisions of section 285(6) supra is like a statute of limitation which takes away the right of action from a party leaving him with an unenforceable cause of action. The law may be harsh but it is the law and must be obeyed to the letter more so when it is a constitutional provision.”
Recall in that case equity would have been invoked to allow Appellant go back to present his petition on merit since it was the interlocutory appeal that went to the Supreme Court in the interest of the electorates, and the society. The Supreme Court did not allow such sentiment on equitable ground.
It is not too late to admonish that financial institutions from now to be more circumspect and not rubble the apple cart till the Land Use Act is amended or in the alternative full court revisit the issue.
It is finally submitted that any financial institution that has been caught by the legal web of SAVANNAH V. AJILO and UNION BANK V. AYO DARE, once they have not been overruled cannot do otherwise than to allow sleeping dog lie till the Land Use Act is amended, or a full court is constituted to overrule the decision in SAVANNAH V. AJILO and UNION BANK V. AYO DARE and all other similar cases in that regard.