K. Akpene v. Barclays Bank of Nigeria Ltd & Anor (1977)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C. 

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) AC 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 judgement 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 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.

Alternatively:

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

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 defendant/respondent founded their claims and defence on this document. The plaintiff/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 herein 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 Midwestern State or of its Minister of Lands had not been obtained to the transaction as required by the provisions of the Native Lands Acquisition Law Cap. 80 Laws of Western Nigeria then application in the Midwestern State”.

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