By Sani Ammani
I. The Land
The land did not move.
It sat where it had always sat, at No. 1 Oyekanmi Street, off Itire Road, in Mushin, Lagos. It held the weight of the buildings on it. It held the roots of whatever grew there. It absorbed rain and gave nothing back except more land, the same land, patient and mute.
In December of 1965, a man named Abraham Oladotun Samuel bought it. He paid his money. He signed his name. The deed of conveyance recorded the transaction in the old colonial language of fee simple, full ownership, unconditional, without end. The land registry in Ibadan recorded this fact: No. 31, Page 31, Volume 896. His name sat in that register like a stone pressed into soft ground.
The land was his.
He could sell it.
He could build on it.
He could die and leave it to his children.
He could go to any bank, lay the title deed on the table, and walk out with money.
He knew this.
The bankers knew this.
The lawyers who drew the deed knew this.
The whole system moved on this shared understanding.
Nobody told him what was coming.
Nobody told any of them.
II. The Decree
In 1978, the soldiers gave Nigeria a new law.
They called it the Land Use Act. General Olusegun Obasanjo’s military administration signed it into existence on 29 March without ceremony, without referendum, without asking the millions of Nigerians who owned land whether they consented to what was about to happen to it.
Decrees do not ask. They announce.
And this one announced everything.
Section 1 of the Act said everything. All land was vested in the Governor.
Every farm.
Every compound.
Every plot a family had tended since before anyone remembered.
Every title deed sealed with wax and registered in any city in any part of the country. The soldiers vested it all in the Military Governor. He was now the trustee. Nigeria held its land in his name.
The Act had a purpose beyond revolution. Before 1978, Nigeria carried two land systems within one body. In the North, the government had always been the allocating authority; you held land because the state permitted you to hold it, and you needed its consent to pass it on. In the South, you held land because you bought it or inherited it, and you needed nobody’s permission to do with it as you wished. The Act came to end this split. One country, one system, one governor holding it all in trust.
Section 34 reached backwards into the past. It said those who already held developed land in urban areas when this Act commenced shall continue to hold it, as if the Military Governor had already issued them a statutory right of occupancy.
As if.
The land stays.
The man stays.
Only the legal character of his holding changes, quietly, the way a river changes colour in the dry season without anyone watching.
And Section 22 was the lock on the new door. It said that no holder of a statutory right of occupancy granted by the Military Governor could transfer, mortgage, or otherwise dispose of that right without the Governor’s written consent.
No consent. No deal.
The Act came into force.
Lagos went about its business.
Transactions continued.
Banks advanced money.
Deeds were signed, sealed, stamped, and registered.
Mortgages were created.
Nobody wrote to the Governor.
Nobody sought consent.
The system moved the way systems move when the people inside them do not yet know that the rules have changed.
III. The Man and the Bank
The man who once called himself Abraham Oladotun Samuel had now become Ammel O. Ajilo.
A man who renames himself knows what it means to hold a thing and call it by a new name. He had built a company, Ammels Photo Industries Limited, which he ran as the managing director. The company needed money. This is not unusual. Most companies need money. He had land. He had a title deed. He went to the Savannah Bank of Nigeria Limited looking for money.
On 5 September 1980, two years after the Land Use Act had done its silent work on his title, Ajilo signed a deed of legal mortgage. He pledged all his rights, title and interest in No. 1 Oyekanmi Street to Savannah Bank. The bank advanced credit to Ammels Photo Industries. The deed was registered. It carried a power of sale, the standard clause that gave the bank authority to sell the property if the debt went unpaid.
Nobody wrote to the Governor of Lagos State. Nobody asked for consent. Nobody thought to ask.
Five years passed.
The debt was not repaid. The bank reached for its power of sale.
IV. The Notice
On 24 May 1985, a piece of paper appeared on the gate of No. 1 Oyekanmi Street.
It was an auction notice. David B. Oni-Orisan, acting as the bank’s licensed auctioneer, had pasted it there and published it widely. It announced to the world that this property, the property Ajilo had owned since 1965, the property he had mortgaged in 1980, the property on which his name had sat in the registry like a stone, would be sold by public auction on Friday, 14 June 1985.
Two weeks.
Ajilo read the notice.
He understood what it meant.
He also understood something the bank did not.
On 12 June 1985, forty-eight hours before the auction hammer was to fall, Ajilo walked into the High Court of Lagos State and filed a case. He asked the court for declarations. The auction notice, he said, was invalid, null and void. The mortgage deed itself was null and void. The bank had no power of sale to exercise. Section 22 demanded the prior written consent of the Governor of Lagos State. That consent had never been sought. That consent had never been obtained. The transaction was void from the day it was signed.
The auction did not take place that Friday.
V. The Argument
The bank’s argument was a distinction.
Chief F. R. A. Williams, Senior Advocate of Nigeria, one of the finest legal minds in the country, stood before every court and made the same careful case. He agreed that Ajilo was a deemed holder of a statutory right of occupancy and that Section 34(2) had converted his freehold title into that right on 29 March 1978.
But Section 22, he argued, did not apply to deemed holders. It applied only to those who had received an actual, direct, formal grant from the Military Governor, a positive act of the state, a certificate issued, or a grant made.
Ajilo’s right had not been granted.
It had been deemed.
It arose by operation of law, not by the Governor’s hand.
Two different things.
Two different rules.
The argument had weight. A man who owned his land before the Act, who needed no favour from any government to acquire it, should not suddenly find himself unable to pledge it to a bank without queuing at a Governor’s secretariat. The Act could not have intended to freeze the commercial life of every Nigerian who had owned land before 1978.
The High Court rejected the argument.
Justice Hotonu held the mortgage void ab initio. The consent requirement of Section 22 applied to Ajilo.
No consent, no valid mortgage.
No valid mortgage, no power of sale.
Simple.
Savannah Bank was unhappy with Justice Hotonu’s decision. It appealed to the Court of Appeal.
The Court of Appeal rejected the argument.
Kolawole, JCA, said every rights holder, whether under Section 34 or Section 36, needed the Governor’s consent before dealing with his interest.
Nnaemeka-Agu, JCA, added that the Governor’s authority over deemed rights was beyond question under Section 38 of the Act.
The bank was again unhappy. So, it appealed to the Supreme Court.
VI. Seven Judges and One Question
At the Supreme Court,
Chief Williams appeared for the bank.
Dr H. O. Kusamotu appeared for Ajilo.
The court admitted Professor A. B. Kasunmu SAN as amicus curiae, a friend of the court, because the court knew this was no ordinary property dispute.
Seven justices of the Supreme Court heard the appeal on 27 January 1989.
Justice Andrews Otutu Obaseki, JSC, delivered the leading judgment.
He did not begin with the parties. He began with the country. Since the promulgation of the Act, he wrote, the vast majority of Nigerians had been unaware of its revolutionary effect. They did not know it had swept away all the unlimited rights they had held in their land. This appeal was one of the earliest cases to bring that revolutionary effect to deep and painful awareness. The disbelief was real. The anger was real. The sense that something had been taken without consent was real. But the remedy was not to pretend the Act said something it did not say. The remedy was to change the Act.
That work belonged to legislators. This work, the work of saying what the law was, belonged to judges.
Justice Obaseki JSC turned to Section 34(2). It said a deemed holder was to be treated as if he held a statutory right of occupancy issued by the Military Governor. The words as if were the key. An English court had said it plainly long before: if you are commanded to treat an imaginary state of affairs as real, you must also imagine the real consequences and incidents which, if that state had in fact existed, would inevitably have flowed from it. Ajilo was to be treated as a holder of a grant by the Military Governor, with all the consequences of such a grant, including Section 22.
Then came the killing concession. In his written brief, Chief Williams himself had acknowledged that Section 38 of the Act, which preserved the Governor’s power of revocation over deemed rights, existed precisely because, without it, someone might have argued that deemed rights were exempt from the revocation power in Section 28. He had cited the Latin maxim ‘expressio unius est exclusio alterius’, which means ‘mention of one thing excludes another.’
Obaseki JSC took that concession and turned it around. If the Governor could revoke a deemed right under Sections 38 and 28, and the ground for such revocation under Section 28 was a breach of Section 22, then Section 22 necessarily applied to deemed holders. You cannot be revoked for breaking a rule that does not bind you.
The concession had given away the case.
Justice Nnamani JSC saw the larger picture. The whole purpose of the Act was to end the duality between the North and the South: one country, one land system, one Governor managing it all. To read the Act as creating two classes of holders, one subject to its consent requirements, the other free to deal with land as in 1965, was to undo the very revolution the Act came to accomplish. The legislature did not enact a half-measure. The courts would not read it as one.
Belgore JSC was shorter still. It made no difference, he wrote, whether the Military Governor physically granted the right of occupancy, or was deemed to have granted it, or was to be regarded as if he had granted it. All three formulations said the same thing. Any alienation required his prior consent. The statute had one clear mission: to telescope all tenures into the Governor’s hands. There was nothing in it to suggest two categories. The courts add no words to clear statutes.
The other four justices concurred without hesitation.
The appeal was dismissed.
Unanimously.
Costs of five hundred naira to Ajilo.
VII. What Remained
Ammel O. Ajilo kept his land.
The auction that had been planned for a Friday in June 1985 never happened. The notice posted on his gate was declared to be what he had said it was: invalid, null and void. The mortgage deed, Exhibit A, executed in 1980, registered in the Lagos State Land Registry, was void from birth. The bank held nothing. Its power of sale rested on a document the law did not recognise.
But the case had never been only about one plot in Mushin.
When the Supreme Court spoke, it addressed every bank that had accepted a mortgage over land previously held in freehold after March 1978 without the Governor’s written consent. It spoke to every lawyer who had drafted such a deed. It spoke to every borrower who had signed one. It told them: the transaction you believed was valid is void. Not voidable. Not irregular. Void, as if it had never happened.
The land at No. 1 Oyekanmi Street sat as it had always sat. Patient. Indifferent. Holding the weight of whatever stood on it.
Thank you for reading. You have just read the facts and principles of Savannah Bank of Nigeria Ltd & Anor v. Ajilo & Anor (1989) LPELR-3019(SC). My name is Sani Ammani. I am a retired poet and recovering writer. I write from the ancient city of Kano. You may reach me at [email protected]
I have taken the liberty of attaching my picture. I felt it was only fair that you see exactly who is responsible for this piece, so you have a face to blame for its length.
