The appellant herein borrowed N215,000.00 on a long time loan from the second respondent Nigerian Industrial Development Bank Limited which it applied for on the 3rd May, 1979 and which was granted on the 11th October, 1979 per the 2nd defendant's letter of that day upon terms and conditions contained therein. On the 3rd of November, 1979, the appellant company by Board's resolution Number 2 of 1979 confirmed the Managing Director's letter of application for the loan which was to be used to establish a Nail Factory. By December 1982, the project was completed and all the principal sum of N215,000.00 had been disbursed.

In 1979, the plaintiff/appellant mortgaged his property at No. 60-64 Akobielemu Layout, Ijebu Road, Ibadan to the 2nd respondent which property was registered as No. 13 page 13 Volume 2295 at the Land Registry, Ibadan. The mortgage Deed which was executed by the parties in 1980 was perfected on the 8/10/85 upon the receipt of the Governor's consent of 12th September, 1980 for a Legal Mortgage which was registered as No. 2 page 2 Volume 2632 at the Land Registry Ibadan on 8th October, 1985.

The plaintiff/appellant's operations at the Nail Factory Later ran into trouble, and the first payment as regards principal or interest was N1,425.46 which the appellant paid in December 1980. By 3/2/87, when the 2nd defendant respondent demanded the whole payment, the total debt plus interest was N354,610.27. Whereupon the 2nd defendant/respondent foreclosed the mortgage and appointed a receiver the 1st defendant/respondent to take over the factory and grounds of the appellant with guards and dogs. Whereupon the plaintiff/appellant filed an action against the two defendants for a declaration inter alia that the deed of mortgage dated 8th October, 1985, between the plaintiff and the 2nd defendant to the extent that it provides for or vests the 2nd defendant as Mortgage with the power of sale of the mortgaged premises is inconsistent with the provisions of the Land Use Act and is therefore unconstitutional, null and void.

The action proceeded to trial after an exchange of pleadings. The main bone of contention by the plaintiff was that the mortgage was void because the Governor's consent was obtained after the execution of the deed of mortgage even though the mortgage deed bore a date subsequent to the approval of the governor.

The learned trial Judge considered the evidence and dismissed the appellant's claims holding that there was no evidence that the deed of mortgage was executed before the consent of the Governor was obtained. The learned trial Judge granted the second respondent's counter-claim but varied the interest to 101/2 per annum.

The appellant appealed.