Nigerian Housing Development Society Ltd V. Yaya Mumuni (1977)
LawGlobal-Hub Lead Judgment Report
SIR UDO UDOMA, J.S.C.
This is an appeal from the judgment of Beckley, J., in the High Court of Lagos State, Ikeja Judicial Division, in Suit No. IK/68/68, wherein the plaintiff, herein respondent, had sought against the first and second defendants, herein first and second appellants, an order of court to set aside a purported sale of plaintiff’s house and landed property known as No. 14 Airport Road, Ikeja by the first defendant to the second defendant; and an injunction to restrain the defendants, their agents and/or servants from interfering with the plaintiff’s possession of the said house and landed property.
Pleadings having been ordered were duly filed and delivered, save and except that there was no defence either filed or delivered by the plaintiff in respect of the counterclaim against the plaintiff by the second defendant seeking an order of court for possession of the house and landed property, the subject matter of the suit; 500pounds damages for trespass; mesne profit; and an injunction to restrain the plaintiff from further entering and trespassing upon the said premises.
On the pleadings and the evidence, the plaintiff by a Mortgage Deed dated 5th September, 1961, mortgaged his leasehold land and premises, described therein as “all that piece or parcel of land situate at Onigbongbo near Ikorodu Road, in Ikeja District with the buildings thereon, registered as No. 53 at page 53 in Volume 418 of the lands Registry at Ibadan” to the first defendant, the Nigerian Housing Development Society, Limited, a Mortgage Company, as security for a loan of 3,000pounds on terms that the principal sum thereof and the interest due thereon be repayable by regular monthly instalments of 30pounds:2shillings:6d(pence):as from October, 1961 until the complete liquidation of the mortgage debt.
In terms of the Mortgage Deed, the plaintiff paid his instalments fairly regularly between 1961 and 1967, but markedly defaulted between 1967 and 1968 because “his business was bad” by reason “of the trouble in the country,” so that by March, 1968, the plaintiff was about some five months in arrears with his instalmental payments. Consequently on the instructions in writing of the first defendant, Chief Ben Oluwole, a licensed Auctioneer, engaged by the first defendant for the purpose, duly advertised the mortgaged property for sale in the Daily Times newspaper issue of 27th March, 1968. Auction notices were also pasted at appropriate places advertising the proposed sale of the mortgaged property.
Then in April, 1968, the plaintiff, having learnt on inquiry that the instalments outstanding in arrears unpaid up to April, 1968, was of the order of the total sum of 210pounds:17shillings:6d(pence):, paid a total sum of 240pounds on 26th April, 1968, for which he was issued with two receipts marked “suspense”, indicating that the payments were received for a suspense account. The sum, according to the plaintiff, represented instalments up to and including May, 1968.
In the meantime, the auctioneer proceeded with negotiations for the sale by private treaty of the mortgaged property and on 29th April, 1968, sold the same to the second defendant for the sum of 7,250pounds. The property was then conveyed to the second defendant by the first defendant as the mortgagee of the same by a deed dated 1st May, 1968. The second defendant thereafter promptly informed the plaintiff of his having purchased the property and gave him notice to quit and deliver the possession of the same to him. The plaintiff naturally resisted and refused to deliver up possession, maintaining that since he had paid the arrears known to him to be outstanding and unpaid up to and including May, 1968, he was entitled not only to continue to remain in possession of the mortgaged property, but also to regard the mortgage as still active and subsisting, subject only to the payment of the reserved monthly instalments in terms of the mortgage deed. Furthermore, the plaintiff on 3rd May, 1968, tendered two monthly instalments in advance to the first defendant, which refused the same on the ground that the property had already been sold in satisfaction of the mortgage debt.
At the hearing in the High Court, the plaintiff contended that he did not receive foreclosure notice or notice of sale, and that there was no sale either by public auction or by private treaty between the first and second defendants. And in the alternative, that if there was a sale (which was denied) such sale was null and void on the grounds of fraud, collusion and irregularities.
The learned trial Judge, after a lengthy review of the evidence, held that on the date of the sale of the mortgaged property, the plaintiff was not in default of his instalmental payments due from him to the first defendant; that so long as the mortgagor had paid up his instalmental arrears up to date, he was entitled to relief by equity because once he had done so, the mortgagee was bound to stop any intended sale of the property; that at the time of the sale, there was no power of sale vested in the first defendant; that so long as the mortgagor had paid up his instalmental arrears up to date, he was entitled to relief by equity because once he had done so, the mortgagee was bound to stop any intended sale of the property; that at the time of the sale, there was no power of sale vested in the first defendant; that the power of sale had not been exercised without irregularity, fraud or collusion on the part of the first defendant; that the exclusion of Section 20 of the “Law of Property and Conveyancing Act, 1881, from the Mortgage Deed whereby the first defendant was not bound to give prior notice of sale to the plaintiff was illegal; and that the second defendant was not a bona fide purchaser for value without notice and therefore that the sale and conveyance must be set aside. The learned trial Judge then concluded his judgment in the following terms: –
“Accordingly, I give judgment to the plaintiff as follows:-
(1)A declaration that the purported sale and conveyance to the second defendant by the first defendant are void against the plaintiff and are accordingly set aside.
(2)I make an order to restrain the defendants, their agents and/or servants from interfering with the possession of the plaintiff in respect to the said house situate and lying at No. 14 Airport Road, Ikeja.
(3)It is ordered that the first defendant shall forward full statement of account of the plaintiff to him within a month of this judgment and the plaintiff will have three months after the service on him of the full statement of “account to pay up all his instalmental arrears which have been due since this case commenced and thereafter shall continue to pay his instalmental payments of 30pounds:2shillings:6d(pence): until the whole of the mortgage debt is repaid.
(4)The counterclaim of the second defendant for possession of the property and mesne profit is dismissed in its entirety.”
The first and second defendants are dissatisfied with the judgment and have therefore each separately appealed to this court on several grounds.
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