Chief Obaseki V African Continental Bank Ltd. & Anor (1965)

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BAIRAMIAN JSC 

The plaintiff (above appellant) sued the Bank and the auctioneer who conducted the sale on the Bank’s behalf, for specific performance and damages on the ground that the Bank refused to execute a conveyance; the High Court dismissed his suit, and he has appealed.

The Bank had a manager at its Yaba branch, who asked the auctioneer to give notice of sale and sell a house mortgaged to the Bank with (among other conditions of sale) a condition that:-

“The highest bidder shall be the purchaser, subject to approval of the mortgagees.”

That condition was known to the plaintiff at the auction. He was the highest bidder, and some days later he was taken by the auctioneer to the branch manager, who asked him to give a crossed cheque for the price to the auctioneer; he did so, and the auctioneer gave him a receipt for the purchase price: (the money found its way into the Bank). The manager gave the plaintiff the documents relating to the house and asked him to prepare a conveyance; he did so through his solicitor, and the manager sent it with the documents of title to the head office. The solicitor to the board of directors wrote on 5th January, 1960 to the manager requesting him to ask the plaintiff to make space for the signature of two directors and the secretary in a certain manner, and went on to say that he would like to have the original deed of mortgage or a certified copy, the copy of notice served on the mortgagor before the sale, and a statement of when and how the notice was served, or if the sale was made by order of court, then a copy of the order.

It came to light that no notice of sale had been given; and when the board of directors met, they did not approve the sale owing to want of notice to the mortgagor. Their secretary wrote to the plaintiff on 5th May, 1960 to inform him of that, and added that the board decided that proper notice should be given to the mortgagor, and if he did not pay the house would be sold to the plaintiff at the price he had offered. Thereafter the plaintiff sued both the Bank and the auctioneer. In fact he had no complaint to make against the auctioneer; and in this appeal nothing was said about his being liable. The dispute was, and is, with the Bank.

A little must be said on the intermediate correspondence. The plaintiff’s solicitor wrote on 19 January, 1960 to the branch manager asking him about the execution of the conveyance; he wrote again on the 26th to the manager to say that if he did not execute the conveyance, proceedings would be taken against the Bank. The manager answered on 6 February to say that if the board of directors approved, they would execute the transfer, and in the meantime the money deposited would be held in suspense. The solicitor wrote to him on the 11th to say that the money was not a deposit but the purchase price, and would he kindly have the conveyance submitted, executed, and returned. The manager wrote on 29 February to say that when the plaintiff was bidding he knew that any price agreed upon with the auctioneer must be approved by the management of the Bank, and that according to the Articles of Association it was the board of directors who could give formal approval. It appears that the plaintiff and his solicitor saw the solicitor of the Bank, who also told them that the sale would need the approval of the board of directors.

We have given a summary of the letters because the judgment under appeal states that-

“The handing over of the title deeds and the instructions given by the manager to the plaintiff to prepare his conveyance were, according to the correspondence that I have referred to, done subject to the fact that the directors of the Bank had to approve the sale.”

Mrs. Marke has argued that when the manager wrote about the need for the approval of the directors, it was an afterthought. We have no doubt it was: in between the manager had realised that no notice of sale had been given to the mortgagor; and we have no doubt that in December, 1959, when the auctioneer took the plaintiff to the manager, the manager thought all was well and the conveyance would be executed. Neither the manager nor the auctioneer was called by the Bank to testify to what happened at the interview, and we must accept it as true that nothing was said about the directors.

The dominant fact is that the manager gave the plaintiff certain documents and asked him to prepare a conveyance that might mean either that he would recommend approval; or that he approved the sale on behalf of the Bank. The latter is the meaning urged on the plaintiff’s behalf as the one he would reasonably put on the manager’s conduct at the interview, and it is his case that the Bank became bound by the manager’s approval and ought to have executed the conveyance. We shall consider that in a moment.

We must fast deal with the argument that the condition of sale already quoted means no more than approval of the purchaser or, rather, of the price, and that the Bank did not object to either. The condition is:-

“The highest bidder shall be the purchaser, subject to approval of the mortgagees.”

In our view that means that the sale made by the auctioneer to the highest bidder is not binding until it is approved by the mortgagees, and the condition cannot be narrowed down to approval of the purchaser or of the price.