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CaseLaw

Apene V. Barclays Bank Nigeria (1977) CLR 1(e) (SC)

Judgement delivered on Janaury 21st 1977

Brief

  • Overdraft facilities
  • Legal mortgage
  • Power of sale under mortgage deed
  • Writ of summons
  • Interest in land
  • Native land acquisition law

Facts

The appellant's full brother by name J. E. Akpene who was the plaintiff's 1st witness in these proceedings in the Court below was a customer of the 1st defendant/respondent, an alien Banking Company registered in Nigeria. In 1963, he applied for overdraft facilities to the Limit of £1000.00 from the 1st respondent and presented the appellant as his surety. The appellant then offered his property at No.51 Obahor Street, Warri as security for the overdraft and deposed by affidavit that the property was worth £2800.00.

A legal Mortgage Deed in respect of the property Exhibit 1 was drawn up. This Deed, embodying the proposed transaction was on the 7th day of January, 1964 presented for approval by the Minister of Lands and Housing, Western Nigeria and it was approved by someone on behalf of the Minister of Lands and Housing, Western Nigeria as shown by the approval endorsed on the Deed which reads:

"APPROVED THIS 7TH day of January, 1964

Signed ? ? ? ?

for Minister of Lands and Housing, Western Nigeria."

Subsequently, on the 2nd day of April. 1964, the appellant who is an illiterate executed the Deed, Exhibit 1.

Arising from this approval, the learned Counsel for the appellant contended before us that the whole transaction embodied in the document Exhibit 1 was null and void and of no effect by virtue of section 3(3) of the Native Lands Acquisition Law Cap.80 L/WN 1959. This, he submitted, was because:

  • 1
    The approval was not obtained from the appropriate authority;
  • 2
    As at the date the approval was endorsed on the Deed, the Mid-Western Re¬gion had been created and excised from the Western Region: Warn Land area was part of the Mid-Western Region and no longer part of the Western Region;
  • 3
    That the appropriate authority to approve the transaction was the person vested with the executive authority of the Region or persons to whom he had so delegated his powers to give approval;
  • 4
    That the appropriate authority at the time of the approval was the Adminis-trative Council of Mid-Western Region or the Commissioner in the Council to whom responsibility for land was assigned.

The 1st Respondent exercised his power of sale under the Mortgage Deed and 2nd Respondent bought the property by private contract. Soon-after the sale, 1st respondent in pursuance to earlier agreement between appellant and the Man-ager returned the cheque paid for the property but the sale agent would not for-ward it on the ground that the sale transaction was closed.

The appellant then filed his writ of summons in the High Court to set aside the sale. The High Court dismissed his claim. He appealed to the Supreme Court.

Issues

  • 1
    TWhether an appellant can raise on appeal a question which was not...
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