Union Bank Of Nigeria Plc & Anor V. Ayodare & Sons (Nig.) Ltd. & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The respondents in the appeal were the plaintiffs at the Lokoja High Court of Kogi State where they claimed against the appellants as the defendants the following reliefs:

“(i) A declaration that the plaintiff could not be indebted to the 1st defendant to the sum of N307,680.25 or any sum at all, when the plaintiff should have outstanding credit balance as a result of several payment which are in excess of the limited N45,000.00 covered by purported two deeds of legal mortgage.

(ii) A declaration that the purported deed of mortgage dated 2nd September, 1980; and 7th July, 1981 registered as no. 78 at page 78 in vol. xii (misc) and no. 81 at page 81 in vol. xv (misc) at the land registry Ilorin in respect of plaintiff’s landed property in Lokoja and Kabba respectively be declared null and void and of no effect in that:-

(a) It was not duly executed as required by law.

(b) No consent was sought and obtained from the appropriate authority the governor and Oyi L.G.A. or B.I.K. L.G.A. before the purported deeds of legal mortgage was (sic) executed.

(c) That the purported consent dated 9th July, 1980, 8th August, 1980 and 2nd August, 1989 contained in the two deeds of legal mortgage were not granted by the governor or appropriate authority or the local government as required by law.

(iii) A declaration that the purported two deeds of legal mortgage dated 2/9/80 and 7th July, 1981 first above described on which the 1st defendant sought reliance to compute or charge her interest and arrived at N307,680.25 as at 1989 be declared null and void in that there was no stipulated interest or any interest rate contained therein as base interest as basis for the computation of other subsequent interest or charges.

(iv) A declaration that the 1st defendant cannot unilaterally and arbitrarily increase the banking interest payable on any loan, overdraft, or banking facilities granted to the plaintiff without the knowledge and consent of the plaintiffs.

(v) An order of perpetual injunction restraining the 1st defendant by itself, its servants, agents including the 2nd defendant or otherwise however from auctioning, selling, disposing or otherwise dealing with any rights, title, or interest or advertising for sale the plaintiff (sic) two landed property situate and lying at Odo-Ero quarters Kabba and Lokoja covered by customary right of occupancy no. 1083 dated 7th Dec., 1972 respectively.”

The parties filed and exchanged pleadings after which the suit was tried by, Fabiyi, J. (as he then was). On 21-09-95. the trial Judge in his judgment, found for the plaintiff on claims (ii). (iii). (iv) and (v) above. The defendants were dissatisfied with the said judgment. They filed an appeal before the Court of Appeal, Abuja (hereinafter referred to as ‘the court below’). The court below, in its unanimous judgment, on 13-04-2000, affirmed the judgment of the High Court and dismissed the appeal. Still dissatisfied, the appellants have come before this court on a final appeal.

They raised four grounds of appeal out of which they formulated two issues for determination namelv:

“(1) Whether the learned Justices of the Court of Appeal were right when they held that the deeds of mortgage exhibits 1 and D1 were invalid, null and void having been based on consent issued and signed by Ag. Chief Lands Officer or Permanent Secretary and Director-General, Kwara State Ministry of Lands and Housing respectively, who were not the appropriate authorities under the Land Use Act.

(2) Whether on the peculiar facts of this case, the strict and inflexible application of the ratio decidendi in the case of Savannah Bank (Nig.) Ltd. v. Ajilo & anor. (1989) 1 NWLR (Pt.97) 305 at 324 is not appropriate, distinguishable and inapplicable.”