A REVIEW OF CALABAR CENTRAL COOPERATIVE & THRIFT SOCIETY V. EKPO:

THOUGHT PROVOKING ISSUES

Odeh Morris Kingsley1 INTRODUCTIONLand based security transactions is central to the Nigerian economy;

unarguably the most important of securities is the mortgage,2 thus it

was stated that ‘the mortgage sector is the future, whether we like it

or not’.3 However, the Land Use Act, 1978 which is the principal

legislation regulating mortgage in Nigeria is so inelegantly drafted

with several unresolved knotty issues on mortgage and also, Nigerian

courts judgment on the matter leaves much to be desired thus it was

stated that “Lawmakers must re-examine legislations governing mortgage

and foreclosure; there is no better time in our legal jurisprudence to

have such a discourse and reflect on a number of questions- do we have

the right legislations in this regard in the light of the Land Use

Act?”4 Mortgagees (e.g. banks or building society) must be given a

comfortable environment through favourable legislations and policies1 LL.B (Hons), 500 Level, Benue State University, SAL (Senior Advocate of LAWSAN), odehmorriskingsley@yahoo.com, 081629813372 Megarry, R. E. and Wade, H.W, Law of Real Property 4th ed (London: Stevens & Sons Ltd3 Abimbola Olayinka, Managing Director/ CEO of Resort Savings and Loan (RSL) Plc, and President of Mortgage Banking Association of Nigeria (MBAN), Vanguard news, February 10, 2013.4 . RELAN President, Professor Charles Ilegbune (SAN), Spoke at the Real EstateLawyers Association of Nigeria, 2013 summit at Lagos.

which will encourage them to lend to mortgagors and investors, so as to

forestall deficit capital, which will in turn hamper development. On

the contrary, in addition to stringent requirement, that an alienation

of a Right of Occupancy must be made with the prior consent of the

Governor,5 the Supreme Court held in Savannah V. Ajilo6 that failure to

obtain consent to a mortgage transaction renders the transaction null

and void notwithstanding that it was the mortgagor that raised the

issue of lack of consent. This judicial interpretation attracted

criticisms,7 nonetheless, the Supreme Court in the same light

reiterated even stronger in Onamanle V. ACB8 that the transfer of

right by mortgage requires the consent of the Governor under Section 22

of the Land use Act and failure to get the requisite consent renders

the transaction a nullity. In OkusanyaV. Ogunfowora,9 Muktar JCA

remarked; ‘Nothing can cure the effect of non-consent of the Governor

before execution of a mortgage. It is therefore null and void if prior

consent is not obtained before execution of a mortgage’10 Justice Ikpambese

5 Section 22 of the Land Use Act, Caps L5 LFN 2004.6 (1989) 1 NWLR (pt 97) 3057 . See Okoli, Savannah Bank: Crocodile tears in the Supreme Court? (1989) 2(No 7) GRBPL 41, Awodein “failure to obtain consent of mortgage- judicial attitude”(1988) 1 (No 1) GRBPL 56, Onuoha R. A. “Governor’s consent under section 22 of the Land use Act: The position of savannah Bank V. Ajilo”8 .(1997) 1 SCNJ 659 .(1997) 9NWLR (pt 52) 347 at 35310 Emphasis mine

Maurice submitted that the decision in the case of Okusanya V.

Ogunfowara is a correct authority of a superior court and must be

followed.11

Against this backdrop, there are two fundamental thought provoking

questions which this article shall attempt to answer, first, whether if

the consent of the Governor of the state concerned is not first had and

obtained prior to execution it would render the whole transaction a

nullity, secondly whether a Mortgagor should be allowed to raise the

issue of lack of consent?

These questions arose from the provocative decision in the recent case

of Calaber Central Cooperative Thrift and Credit Society ltd V. Ekpo,12

the Supreme Court seems to have resurrected the principles in Savannah

Bank V. Ajilo,13 despite several cogent criticisms, equitable

principles, judicial pronouncements and the clear provisions of Section

22 of the Land Use Act, 1978 to the contrary.

11 Ikpambese M. K. Nigerian Land Law, (Makurdi: Oracle publications, 2010), p. 10012 (2008) ALL FWLR (Pt. 418) 198, (2008) 6 NWLR (pt. 1083) 36213 Supra

CONCEPTUAL CLARIFICATIONS

Mortgage is an example of a Land based security transaction and it is

the main focus of this article. Mortgage can simply be defined as an

interest in land created by a written instrument providing security for

the performance of a duty or the payment of debt.14 In the case of

Stanley V. Wilde15 per Lindley M.R. mortgage was comprehensively defined

as; ‘a mortgage is a legal or equitable conveyance of title as security

for the payment of debt or the discharge of some other obligation for

which it is given subject to condition that the title shall be re-

conveyed if the mortgage debt is liquidated’. The essential nature of a

mortgage is that it is a conveyance of a legal or equitable interest in

property, with a provision for redemption, that is, upon payment of the

loan, or the performance of the act, the interest shall be reconveyed.16

In Nigeria, a mortgage transaction is subject to the consent of the

Governor or appropriate local Authority17 and that failure to obtain

14 Black’s law dictionary, pg 1009-1010.15 supra16 Megarry, R.E. and Wade, H.W.R. op.cit p. 88517 Section 22(1) of the Land use Act provides, it shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate hisright of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained…Section 22(2) provides that the Governor when giving his consent to an assignment, mortgage or sub-lease may require the holder of a statutory right ofoccupancy to submit an instrument executed in evidence of the assignment,

consent as to any alienation of a right of occupancy will render the

underlying transaction null and void.18 However, it has not expressly

indicated how the consent is to be obtained. This has generated some

controversies as to when or how this is to be done; one of such

controversies as to when or how this is to be done and whether consent

should be sought before or after negotiation.

In the case of Savannah Bank V. Ajilo, the Supreme Court held that

failure to obtain first the requisite consent to an alienation of a

right of occupancy rendered the transaction null and void, and that the

consent provisions applied to both actual and deemed grants of the

right of occupancy.

Realizing the negative effect of Ajilo’s case and the clear provision

of Section 22 of the Land Use Act, 1978, the Supreme Court in

Awojugbagbe Light industries ltd V. Chinukwe,19 held that failure to

obtain consent to a qualifying transaction under the Land use Act would

mortgage or sub-lease and the holder shall when so required deliver the said instrument to the Government in order that the consent given by the under subsection (1) of this section may signified by endorsement.18 . Section 26 of the Land use Act provides that any transaction or any instrument which purports to confer or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be nulland void.

19 . (1995) 4 SCNJ 162

not render the transaction null and void ab initio but that the

transaction would be inchoate until consent was obtained. This decision

was reinforced in a later decision of the Supreme Court in Brossette

Manufacturing Nig. Ltd V. M/S llemobola Ltd. 20

It however remains a mystery why the apex court still applied the

position in Ajilo’s case in Calabar central cooperative and thrift

society and 2 ors V. Ekpo21

THE CASE OF CALABAR CENTRAL COOPERATIVE AND THRIFT SOCEITY AND 2 ORSV.

EKPO.

*THE FACTS

The plaintiff/respondent was employed as a clerk by the 1st

defendant /appellant sometime in July 1964 and rose to the position of

senior travelling secretary by May 1974. In June 1987, the respondent

was, by a letter, exhibit B, suspended from his employment by the 1st

appellant on the grounds that the respondent perpetrated some

fraudulent acts which tarnished the image of the 1st appellant, pending

the result of an investigation into the matter. The suspension was with

20 (2007) 14 NWLR (pt 1053) 109 at 135-13621 . supra (the case under review)

immediate effect. The respondent was subsequently arrested by the

police at the instance of the appellants and detained for investigation

and/or interrogation. In all, the respondent was arrested three times.

He was taken to the State Police headquarters during his third arrest

and the police threatened to lock him up with hardened criminals unless

he signed a mortgage deed prepared by the Appellants in respect of his

aforesaid property. By the deed of Mortgage, the Respondent assigned

his interest in the property in favour of the 1st Appellant. The

Respondent subsequently brought an action by way of originating summons

for the determination of the question “Whether, in accordance with the

land Use Degree, 1978, valid title has been passed January, 1987, over

the plaintiff’s property situate at No. 3C, Enebong Avenue, Calabar?”

*THE DECISION- The Supreme court held that, “by the provisions of

Sections 22(1) and 26 of the Land use Act, 1978, it shall be unlawful

for a holder of a right of occupancy to alienate same or any part

thereof by assignment, mortgage, transfer of possession, sublease or

otherwise without the consent of the Governor first had and obtained.

The provision is mandatory and makes the obtaining of the Governor’s

consent a precondition for the validity of any alienation of a right of

occupancy under the Land Use Act, 1978. Though there is no time limit

to the obtaining of the said consent by the provision, it is very clear

that before the alienation can be valid or be said to confer the

desired right on the party intended to benefit there from, the consent

of the Governor of the State concerned must be first had and obtained.

That does not, by any means, make the transaction, without the

requisite consent, inchoate. It makes it invalid until consent is

obtained.”22

CRITICAL APPRAISAL

It was stated in the introductory part of this work that this article

aims at answering two questions. This section shall focus on answering

the first question- whether a transaction is a nullity if the consent

of the Governor (of the State concerned) is not obtained prior to

execution or negotiation. Onnoghen JSC, who delivered the lead judgment

in the case under review, stated expressly the general proposition of

law on the effect of failure to obtain the requisite consent when he

postulated that;

it is very clear that before the alienation can be valid or be said to confer the desired right on

the party intended to benefit there from, the consent of the Governor of the State concerned

22 Ibid p. 222,

must be first had and obtained. That does not, by any means, make the transaction, without the

requisite consent, inchoate. It makes it invalid until consent is obtained.

This rule of law stated above with due respect is inconsistent

with the clear provisions of the spirit and letters of Section 22 of

the Land Use Act, 1978, unarguably, Section22(1) and 26 of the Land Use

Act, 1978 nullifies any mortgage transaction without the Governor’s

consent, however Section 22(2) of the Land Use Act provides to the

effect that the Governor, whose consent is needed has a discretionary

duty to require the mortgagor to submit an instrument executed in

evidence of mortgage on which the consent of the Governor may be

signified therein. The question that remains unanswered after such a

decision in the case under review is: which instrument is Section 22(2)

of the Land Use Act referring to? If consent have to be obtained before

execution, then there cannot be any executed instrument in evidence of

mortgage, which the mortgagor is require to submit? In other words

since Section 22(2) of the Land Use Act, use the word “may” it means

that consent can either be obtained before or after negotiation or

execution. Ogundare JSC stated: in practice, it is on the deed of assignment that the

Governor’s consent is usually endorsed...the fact that (consent) was never (obtained) would

not…derogate from the equitable title that (the assignor) passed to ( the Plaintiff).23 With due

respect it is wrong for Justice Maurice Ikpembese24 to state that

Okusanya V. Ogunfowora19 is a correct authority of a superior court and

must be followed, which decision is to the effect that non-consent of

the Governor prior to execution of a mortgage, makes the mortgage null

and void. Muhammed JSC clarified this position thus; ‘whether there was

coercion or not, the law under Section 22(2) of the Land Use Act

recognizes cases where some form of written agreement executed in

evidence of a transaction is submitted to the Governor in other to

obtain his consent as required by the Section’25

Prior to the Land Use Act, 1978, Under the Land and Native Rights

Ordinance which has a similar provision to section 22 and 26 of the

Land Use Act, 1978, the court in Orjiako V. Orjiako26 was of the opinion

that the negotiation and agreement must proceed the application for

consent but the agreement must be conditional upon the necessary

consent being obtained. Also in Safe V. Northern States Marketing

Board27 Wheeler J stated that he would require a great deal of

23 . Irangunima V. Rivers state housing (2003) 12 NWLR (pt 834) 440-44124 Ikpambese M.K. (2010), Nigerian Land Law, Makurdi, oracle publications. Pg 100

25 . Calabar central’s case (supra) pp 243-24426 JD/27/5527 . (1970) (2) ALR Comm 387, 395

convincing that the effect of Ss. 27 and 28 of the Land Tenure law

(inpari materia with Ss. 21 and 22 LUA) was to require the consent of the

Governor to a sale by auction of land before the sale was held and to

invalidate the sale ab initio if it was not obtained.

This position was again affirmed in Iragonima V. Rivers State Housing &

Property Development Authority28 where the Supreme Court held that it

was a misconception to argue that, as the prior consent of the Governor

was not sought or obtained before Deed of assignment was executed, the

assignment was null and void. Also in Brossette Manufacturing Nig. Ltd

V. M/S Ilemobola ltd,29 the Supreme Court held that Section 22 of the

Land Use Act, 1978 did not render null and void or illegal a purported

sublease. The court further that such an agreement would only be

dormant or inchoate and would create no legal relationship until the

requisite consent is sought and obtained from the appropriate

authority.

In prove of the fact that, the legal principle in Savannah V. Ajilo

case on prior consent Governor has long been buried and a funeral to

that effect have been conducted, Imran Smith, stated that failure to

28 . (2003) FWLR pt 169 109 p. 1233.29 (2007) 14 NWLR (pt 1053) 109 at 135-136

obtain the Governor’s consent, in light of the Supreme Court’s decision

in Awojugbagbe Light Industries Ltd V. Chinukwe (supra) will not make

the transaction void ab initio, rather the transaction will remain

inchoate and unenforceable until consent is obtained. 30

In the case under review, it is however strange that the apex court

did not consider its earlier decisions31 all of which interpreted and

applied Sections 22 and 26 of the Land Use Act in accordance with the

demands of justice and equity but it simply resurrected the position in

Savannah Bank V. Ajilo without regard to the qualifications which the

same Supreme Court had made to the Ajilo’s case in its subsequent

decisions.32 This Writer argues in support of the decision in the case

Calabar Central Cooperative V. Ekpo, that it may be justified in

respect of the facts formulated and submitted by parties.33 However to

30 Imran O. S.(2001) Nigeria Law of Secured Credit, Lagos, Ecowatch publications Ltd, pg 5931 . Awojugbagbe V. Chinukwe (supra), Brossette Manufacturing industries V. Ilemobola (supra), Ugochukwu V. Cooperative and Commerce bank Ltd (1996) 6 NWLR (pt 456) 524, Iragonima V. Rivers State housing (supra), Orjiako V. Orjiako (supra)32 Referring to what the Supreme Court did in the case of Calabar Central Cooperative Ltd V. Ekpo (Supra)33 (2008) 1-2 SC at 253 Onnoghen JSC. His Lordship also held that: it is settled law that parties and the court are bound by the pleadings of the parties in any matter and that facts not pleaded ground to no issue. In the instant case, it isnot the case of the case of the appellants, as evidenced in their pleading, thatthe document of alienation, Exhibit A, is inchoate neither is there evidence in record in support of same. That being the case, I hold the counsel, however brilliant is no substitute for the pleading and evidence in proof of same and therefore ground to no issue. The argument of learned counsel for the appellants

the extent to which, its state a general rule of law, this writer

totally disagree. One begin to wonder why; despite the injurious

loopholes in the appellant’s case, which were enough reasons to render

the said mortgage transaction null and void, the Supreme Court went

further to hold that- the consent of the Governor of the State concerned must be first

had and obtained. That does not, by any means, make the transaction, without the requisite

consent, inchoate. It makes it invalid until consent is obtained.

This decision implies that even if the appellant proved via pleadings

that Exhibit A was inchoate until the consent of the Governor is

obtained, the Supreme Court will still hold that it is invalid and a

completed act of the parties.

Another puzzle that readily comes to mind is, even though the appellant

did not expressly state in their pleading that exhibit A is subject to

the consent of the Governor, for the fact that it has not been

registered, should that not imply that the Deed of Conveyance have not

been completed, because it is possible that the appellants where

waiting for the respondent (Mortgagor) whose duty it was to obtain the

requisite consent. In the case of Onashile V. Idowu,34 it was held that

as to the inchoate nature of Exhibit A is therefore discountenanced by me.”

34 (1961) all NLR 313at 316

a mortgage comes within the purview of Section 5 of the registration of

titles Ordinance and must be registered.

THE PLACE OF EQUITY

Sir Nathaniel Wright defines equity in Lord Dudley and Ward V. Lady

Dudley35 thus; Equity is no part of the law but a mere virtue which

qualifies, moderates and reforms the rigour, harshness and edge of the

law and it is a universal truth, it thus assist the law where it is

defective and weak in the constitution (which is the life of the law)

and defends the law from crafty invasions, delusions and new

subtleties.

This section is shall focus on answering the second question raised in

the introductory part of this article, which is- whether a mortgagor should

be allowed to raise the issue of lack of consent? The Mortgagor is the

‘borrower’, while the Mortgagee is the “lender” It is important to note

that, it is the duty of the mortgager to obtain the consent of the Governor

of the state concerned. Then the issue that comes to bear is- If a person

of whose duty it is to obtain consent negligently or deliberately refuses

to obtain consent, raises the issue of lack of consent, after he has

35 . (1705) 24 E.R. 118 at 119

collected the loan from the lender; is it conscionable to declare the whole

transaction null and void ab initio for lack of consent, thereby allowing

the mortgagor to have both the loan and the mortgage property?

It is a settled equitable principle that a person should not be allowed to

benefit out of his own wrongful act or omission. In Adetuyi V. Agbojo,36 the

court held that it is morally despicable for a person to have benefited

from an agreement and then turn around to say that the agreement is null

and void. Thus a vendor whose duty it is to obtain the Governor’s consent

would act, that is omitting or refusing to obtain the Governor’s consent so

as to allege against the buyer that the agreement is null and void. The

vendor should not be allowed to benefit from his own wrongful act.

Upholding this rule of law, in Adedeji V. National Bank of Nigeria Ltd,37

the court of appeal held that, a transaction without the requisite consent

would not be declared void of the party whose responsibility it was to

obtain the consent.

The case of Savannah bank V. Ajilo33 which provided a good premise for the

Supreme court to uphold this equitable principle, it held that, even though

the 1st plaintiff/Respondent in that case by the tenor of the Land Use Act

36 (1997) 1 NWLR pt 484 at 70537 (1989) 1 NWLR pt 96 at 212

committed the initial wrong by alienating his statutory right of occupancy

without prior written consent of Governor, the express provisions of the

Land Use Act made it undesirable to invoke the maxim ‘ex turpi causa non

oritur actio’ and the equitable principle enshrined in the case of Bucknor

V. Inlaks Ltd.38 The supreme court seems to have ignore with due respect the

settled equitable maxim that equity follows the law, however on ground of

public conscience test an unjust law gives reason to equity not to follow

it39 and also with regards oppressive statutes.40 With due respect, it is

shocking that well learned Justice Obaseki will hold the view that the

express provisions of the Land Use Act made it undesirable for the court to

invoke the maxim ‘ex turpi causa non oritur actio’ and equitable principle

enshrined in case of Bucknor V. Inlaks Ltd without considering judicial

precedents and exceptions to the maxims.

Fortunately in the later case of Ugochukwu V. Cooperative and commerce Bank

Ltd41 the Supreme Court held that it would be unconscionable and fraudulent

for a mortgage that ought to obtain consent but failed to do so, to assert

that the mortgage deed was null and void for lack of consent. The Supreme38 . Supra, per Obaseki JSC39 In Adebo V. Omisola (2005) 2 NWLR pt 909, 149,175, the court held that ex turpi causa non oritur action (an action cannot arise from a debase cause) is anexception to the rule that equity follows the law40 . Oppressive in the sense that some take advantage of the letters of the law as strictly interpreted to cheat others41 (1989) 1 NWLR pt 96 at 212

Court further held that: 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 the economic activities

in this country. This court, I dare say, will not allow such a situation to arise. Regrettably, the

Supreme Court in Calabar Central Cooperative V. Ekpo adopted the position

in Savannah Bank V. Ajilo and allowed the fraudulent will of a Mortgagor

prevail. Sankey JCA lamented the frustrated position of equity, when he

stated in the case of Pharmatek Industrial Projects Ltd V. Trade Bank Nig.

Plc42 thus

due to the current position of the law the Appellants in this case will clearly benefit from

their own wrong, while rules of equity that could apply to give the respondents a remedy lie

prostrate and helpless. However unless and until there is a review of the law, we are duty

bound to apply the law as it is and not as we would wish that is’ the learned Jurist used the

word ‘could’ and not ‘should’ because if not for the sake of stare decisis equity would have

carried the day.

It may be contended that their Lordships where not given an

opportunity to freely explore this equitable principle due to the

appellant’s flaw in their pleadings, inappropriate prayers and

negligence not to obtain the leave of either the Court of appeal

or the supreme court to consider the debt of N80, 000 considered42 (2009) 13 NWLR (Pt 1159) 577 at 628

to be owed by the respondent to the 1st appellant.43 However, to the

extent that it states a general proposition of law and that the

applicability of equity should be grounded on technicalities and

rigid adjectival rules, I totally disagree.

PRACTICAL IMPLICATIONS OF CALABAR CENTRAL’S CASE

It is so obvious for the blind to see that the decision in

Calabar central’s case is simply calamitous and retrograde. If it

is not speedily reversed it could smother commerce. The truth is

that, either unconsciously or unavowedly, the Supreme court in its

eagerness to achieve a desirable result on the facts flung itself

headlong into a very narrow conception of the consent issue. The

act of vesting Governors with the power of consent to a mortgage

transaction is a major stumbling block, adding to this quagmire is

43 Calabar Central cooperative V. Ekpo (supra), per Onnoghen JSC, pg 217 “ It is very clear that ground 1 together with the particulars thereof is simply a ground attacking a finding of facts by the court below; it isnot a ground oferror of law at all. To establish the existence of the debt of N80, 000.00, one needs facts to prove same, not otherwise. The above finding complained of being a finding of fact, it is settled law that for the appellants to successfully appeal against the finding, they must first of all obtain the leaveof either the lower court or of this court. It would have been otherwise if the complaint was purely a complaint of error in law. It is clear from the record that appellants never obtained the leave of either the lower court or of this court to appeal on the facts, so grounf1 of the grounds of appeal in so far as it is a complaint against the findings of facts is incompetent and is consequently liable to be struck out.

the injurious interpretation of Section22 and 26 of the Land Use

Act, 1978 as stated in Calabar Central Cooperative case, which

simply resurrected the case of Savannah V. Ajilo.44 Unambiguously,

the Supreme Court, herself, observed that the implementation of

the consent clauses in the Land Use Act, 1978 is bound to have a

suffocating effect on the commercial life of the Land and house

owning class of society who use their properties to raise loans

and advances from banks,45 thus it was submitted that apart from

the process of obtaining consent under the Act is very cumbersome,

if a mortgagor is allowed to set up non consent to defeat the

mortgagee’s enforcement of the security and that consent must be

obtained prior to negotiation, this will not only operate to

stifle secured credit transactions on land46 but it is a clear

disincentive in Nigeria becoming among the top 20 leading

economies in the world in 2020 because a creditors will discourage

to enter any negotiation for credit facilities until the mortgagor

shows evidence of the requisite consent.47 The morgagee who

44 Supra45 Ugochukwu V. Cooperative and commerce Bank Ltd (supra) pg 52446 . Babalakin, W. “key constraints to Real Estate development in Nigeria”, www.babalakinandco.com accessed on the 13th October, 2014 47 It may take a mortgagor two years to obtain the requisite Governor’s consent and may be another two years or more to finalize negotiation for the loan sough.That will lead to unnecessary waste of time. Can’t the two exercises be allowed

ventures into giving credit facilities on a security without

consent may find it too costly eventually.48

CONCLUSION

The wealth of confusion is basically on the words first had and obtained

and null and void stated in section 22 and 26 of Land Use Act, 1978

respectively. The Governor’s consent must be first had and obtain but if

the Mortgagor fails to obtain consent, it shall be declared null and

void. Niki Tobi JSC was quick to state that “the court of law

cannot ignore provisions of a statute which are mandatory or

obligatory and tow the line of justice in the event that the

statute has not done justice”.49 The question that comes to mind is-

between the provisions of statute and justice which should take

precedent? Lord Denning postulated clearly that50 “Whenever the

strict interpretation of a statute gives rise to an absurd and

unjust situation, the judges can and should use their good sense

to remedy it by reading words in, if necessary- so as to do what

to be done simultaneously?48 Adeayem F,I//m and Oguniran, H.D. ‘’’The socio-Economic Implications of the Land Use Act,’ published in The Land Use Act: Administration and Policy Implication, edited by Olaide A. (Department of Private and Property Law, University of Lagos, 1991). P.7749 . Calabar central (supra) p.227. paras. B - C50 .Notham v.Barnet Council (1978) 1 WLR 220

Parliament would have done, had they had the situation in mind.”

In the same spirit Phelps stated that ‘a Judge when construing a

statute must consider “not only what the statute means abstractly

but also what it ought to mean in terms of the needs and goals of

our present day society” statutes are made for the society not

society for the statutes’. 51

A better and true position of law was stipulated in the case of

Owoniboys technical Services Ltd V. Union Bank of Nigeria

Ltd,5253where the Supreme Court held inter alia that it is the duty of the

Mortgagor to seek and obtain consent. The receipt of the consent obtained before or after

conclusion of negotiation for the lending is immaterial. It must, however, be sought and

obtained to cloth the transaction with legality.54

In conclusion the Supreme Court should always be conscious of the

ancient but living doctrine of stare decisis which aims at achieving

certainty. With profound humility and due respect, if the Supreme Court

wants to tread a new path; it would be wise if they can distinguish the

case at hand with previous decisions which have interpreted the same

issue for determination or put on record convincing reasons for such51 Factors influencing Judges in Interpreting Statutes (1950) 3 Vanderbilt Law Review, 456, 46952 (2003) 7 SCNJ, 17753

54 . emphasis mine

departure and also overrule its previous decision, all these the apex

court failed to do in Calabar Central Cooperative V. Ekpo’s case. In the

same light Basiru Ajibola stated that; ‘It does not augur well for the

development of case law in Nigeria for the Supreme Court to make a

decision without at least referring to and considering its earlier

relevant decisions, even if only to distinguish, explain or expressly

overrule them’.55 Aside from Ajilo’s case not even one of the earlier

Supreme Court decisions was cited or discussed. This is a great

disservice to the legal profession, because with the earlier decisions

left extant, legal practitioners would be at a loss on how to advise

their clients. Also all courts inferior to the Supreme Court would be in

perplexity which of the authorities to follow.

This disastrous position better still confusion expounded thus far, can

only be remedied by a judicial review by the Supreme Court or law reform

through the legislature. However there is a ‘Bill pending before the

National Assembly (since 2009) for the amendment of the Land Use Act.

The proposed Bill seeks to restrict the requirement of Governor’s

consent to solely alienation via an assignment or sale, thus,

55 . A. Bashiru, Savannah Bank V. Ajilo resurges in full force: a review of Calabar central cooperative thrift and credit society ltd and 2ors V. Bassey ebong ekpo (2010) A.R. pg166

effectively excluding mortgage transactions from the ambit of the

existing consent provisions.’