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.
We shall deal with the appeals in the order in which they were argued before us. In which case, consideration will first be given to the appeal of the second defendant, at the same time being mindful of the fact that the appeals are against one judgment in what, after all, apart from the counterclaim, is one suit and that Mr. Coker, learned counsel for the first defendant, in his submissions, fully associated himself with the submissions made in respect of the appeal of the second defendant.
The first ground of appeal argued for the second defendant was one of mis-direction in law. It was submitted by Chief Rotimi Williams, learned counsel for the second defendant that the passage in the judgment wherein the learned trial Judge stated as follows: –
“My own view is that as long as the mortgagor has paid up his instalmental arrears up to date, he is entitled to relief by equity. In fact, once he has done so, one would expect the mortgagee to stop any sale of the mortgaged property”,
constituted a misdirection in law in that by the terms of the Deed of Mortgage binding on the parties, since the whole amount secured by the mortgage had become due and payable, payments of any sum or sums by the mortgagor short of the whole amount secured would not and could not be a discharge or a complete discharge of the obligations of the mortgagor. Therefore, contended learned counsel, the mere payment of the instalmental arrears claimed in the case on appeal, could not by any rule of law or equity, operate to bar or restrain the exercise of the mortgagee’s power of sale.
This is a weighty submission and requires careful consideration in the light of the evidence and having regard to the Mortgage Deed as well as the submissions of the learned counsel for the plaintiff.
There is, of course, no dispute that the loan of 3,000 was in fact granted, in consequence whereof the property in question was mortgaged to the first defendant as security by the plaintiff. There is also no dispute that the Mortgage Deed, Exhibit 2, was on 5th September, 1961, duly executed by both parties to the transaction and that both of them are bound by the terms thereof; nor is there any dispute that by the terms of the said mortgage deed, the principal money with interest due thereon was to be liquidated by monthly instalments “in the manner and at the times” stipulated therein. The first monthly instalment was paid on 5th October, 1961, that is, one month after the execution of the Deed, Exhibit 2.
Two important questions would appear to be raised by the submissions made in reply to the submissions of Chief Rotimi Williams by Mr. Sodipo, learned counsel for the plaintiff, Mr. Sodipo conceded that prior to the sale of the mortgaged property, the plaintiff was in arrears with his instalments, but contended that by the 1st May, 1968, the date of the Deed of Conveyance, Exhibit 25, to the second defendant, the plaintiff had cleared all arrears by a lump sum payment of the sum of 240 made on 26th April, 1968, and therefore that the power of sale had not arisen because the acceptance of the sum of 240 on 26th April, 1968 precluded the first defendant from exercising the power of sale provided for in the Deed of Mortgage.
The two questions which arise and must be answered, therefore, are these:
(1)On the 29th April, 1968, when the mortgaged property was sold (assuming there was a sale) had the power of sale arisen And
(2)On that date was the plaintiff legally in breach of the terms of his covenant to repay the principal money and interest by regular monthly instalments
For answers to these questions, we turn to examine the Mortgage Deed, Exhibit 2, the relevant provisions whereof are contained in Clauses 1 and 5 and are as set out hereunder:-
“1.The Borrower covenants with the Nigeria Building Society to pay to the Nigeria Building Society on the 5th day of March 1962 the said sum of 10pounds (Ten Pounds) with interest thereon at the rate hereinafter prescribed from the date hereof AND ALSO to “pay to the Nigeria Building Society the money which shall hereafter be advanced to the Borrower pursuant to the covenant for that purpose hereinafter contained on the 31st day of December, or the 30th day of June whichever next happens after the date of the advance, AND ALSO so long as any principal money remains due hereunder after the date for payments thereof and whether or not any order or judgment in respect thereof has been obtained to pay to the Nigeria Building Society on the last day of every month interest calculated in the manner hereinafter appearing at the rate hereinafter prescribed.”
And Clause 5(1) and (2)
“5(1) Subject to the provisions of clause 6 hereof, if the Borrower pays to the Nigeria Building Society on the 5th day of October, 1961 and on the last day of every succeeding month the sum of 30pounds:2shillings:6d(pence) : (Thirty Pounds two shillings six pence) until the whole of the principal money hereby secured and interest calculated in accordance with clause 6 hereof has been fully paid and if there shall not have been any breach of any obligation, statutory or otherwise, binding on the Borrower or of any of the covenants, whether express or implied, herein contained and on his part to be observed and performed (other than the covenants “in clause 1 hereof for payment of the principal money and interest hereby secured) then the Nigeria Building Society shall accept payment of the principal money and the inerest thereon by instalments at the times and in manner aforesaid, and will not require payment of such principal money otherwise than by such instalments.
5(2) Notwithstanding the provision for the payment of the principal money hereby secured by instalments, but without prejudice to that provision, such principal money shall be deemed to become due within the meaning of the Conveyancing and Law of Property Act, 1881, and for all the purposes of that Act, on the date or dates prescribed by clause 1 hereof.”
Although the wording of the Mortgage Deed, Exhibit 2, is not the subject of any complaint by any party to these proceedings which postulates the inference that both parties are clearly ad idem as to their intention in regard to the Deed, we feel bound to observe that the wording of Clause 1 of the Deed, in particular, leaves much to be desired, because the clause lacks clarity and cries aloud to high heavens for improvement. For, in a document of the kind under consideration, one has a right to expect precision in draftsmanship.
Be that as it may, on a careful consideration and examination, it appears that since the loan of 3,000pounds was granted practically contemporaneously with the execution of the mortgage deed, and the first monthly instalment was paid to the first defendant in October, 1961, in terms of Clause 1 of the Mortgage Deed, the token sum of 10pounds was due repayment on 5th March, 1962 and the whole of the principal money with interest thereon was also due repayment on either 31st December, 1962 or 30th June, 1962, whichever next happened after the date of the loan. Which in effect means that in any event the principal money with interest was due repayment in 1962.
In terms of the Clause aforesaid, however, so long as the principal money remained due after the date of repayment, the plaintiff had covenanted to pay to the first defendant on the last day of every month interest calculated in the manner and at the rate prescribed in the mortgage deed.
Then in accordance with Clause 5(1) the plaintiff agreed to repay the first defendant the whole of the principal money and interest thereon by monthly instalments of the sum of 30pounds:2shillings:6d(pence): each month, the first such instalment to be paid on 5th October, 1961, and thereafter on the last day of every succeeding month until the whole of the principal money and interest had been fully paid and completely liquidated. On those terms and subject thereto the first defendant also agreed to refrain from requiring the repayment of the principal money and interest thereon otherwise than by the prescribed instalments and in the prescribed manner so long as the instalments were paid regularly and the plaintiff did not commit any breach of any obligations, statutory or otherwise, binding upon him. Furthermore despite these arrangements, it was specifically provided in Section 5(2) that the principal money shall be deemed to become due within the meaning of the Conveyancing and Law of Property Act, 1881, on the dates prescribed under Clause 1.
The effect of the provisions of Clauses 1 and 5 of the Mortgage Deed would appear to be this: that repayment of the principal money with interest in full, although due as far back as 1962, was postponed in preference to repayment by monthly instalments of a fixed sum on terms as to regularity of such monthly payments and non-breaching of any other obligations, statutory or otherwise, binding upon the plaintiff. That being so, it is perfectly plain that the statutory power of sale vested in the first defendant by virtue of Section 19(1) of the Conveyancing and Law of Property Act, 1881, which confers upon a mortgagee “a power, when the mortgage money has become due, to sell, or concur with any other person in selling the mortgaged property”, arose as far back as 1962, that is, long before the 26th April, 1968. This then provides the answer to the first question in the affirmative.
The answer to the second question must also be in the affirmative having regard to the peculiar situation disclosed by the Mortgage Deed and on the evidence. Obviously, it was the first defendant which postponed the payment in full by the plaintiff of the principal money and interest in 1962 in preference to the payment by monthly instalments of the sum of 30pounds:2shillings:6d(pence):, commencing from 5th October, 1961 and thereafter on the last day of every succeeding month. Payment of the instalments fell into arrears because the plaintiff’s business, on the evidence accepted by the learned trial Judge, was bad, so that by March 1968, the plaintiff was some five months in arrears, and on his own admission, by April, 1968, he was owing instalments totalling the sum of 210pounds odd. On his own showing therefore, the plaintiff had committed a flagrant breach of his own covenant thereby throwing himself at the mercy of the first defendant and exposing himself to the rigours of such a breach.
In such circumstances, was it reasonable for the plaintiff, without reaching a proper agreement and understanding with, and obtaining the full consent of the first defendant, to rush at the last minute to pay the outstanding arrears after realising that the property was liable to be sold We think not. The plaintiff, having defaulted in the payment of his instalments for so long, would appear to have deprived himself of the right to continue to liquidate his loan by the easy method of regular monthly instalments. That right had lapsed and could only have been preserved or revived with the consent of the first defendant, because the breach of his covenant caused the whole of the principal money with interest to become immediately due and payable in full.
And it seems to us, therefore, that if the first defendant had applied to the court in April, 1968 when the plaintiff was in arrear of his instalments for an order for possession, it would have been extremely difficult for the court to refuse to make such an order merely because the plaintiff had brought the total sum in arrears up to that date to court. That was the view taken in Robertson v. Cilia, (1956) 1 WLR. 1502. There a mortgagee applied by summons to the court for an order for possession of the mortgaged property on the ground that payment of instalments was in arrear. The mortgagor applied for the case to stand over generally. After certain interlocutory proceedings, the summons was adjourned into court in order that it might be determined to what extent the court had power to stand over generally a summons of that nature. At the time of the hearing, all arrears of instalments due under the mortgage had been paid up, but the right to repay by instalments had lapsed; and it was admitted that owing to general credit restrictions the mortgagor would not be in a position to redeem within any foreseen time. It was held that, an order for possession should be made as the mortgagee was entitled to possession, and, in those circumstance, there was no power to stand the matter over generally without the consent of the mortgagee nor would it be a reasonable exercise of power to stand it over for a period when there was no prospect that the mortgagee would be in a position to make an acceptable offer. (See also Hinkley and South Leicester Permanent Benefit Building Society v. Freeman, (1941), Ch. 32)
In Birmingham Citizens Permanent Building Society v. Caunty & Anor, (1962) Ch. 883, it was held that where the legal mortgagee under instalmental mortgage under which by reason of default the whole money had become payable was entitled to possession, the court had no jurisdiction under the practice direction made under R.S.C. Order 56, Rule 5A, or otherwise to decline the Order or to adjourn the hearing whether on terms of keeping up payments or paying arrears, if the mortgagee could not be persuaded to agree to such a course. To this the sole exception was that the application might be adjourned for a short time to afford to the mortgagor a chance of paying off the mortgagee in full, or otherwise satisfying him; and on that basis, tenders made by the mortgagor during the course of interlocutory proceedings should not be refused but accepted expressly without prejudice to the existing rights of the mortgagee.
Jenkins v. Jones (1860) 2 Giff 99, which was cited to us by learned counsel for the plaintiff wherein a sale of the mortgaged property was set aside as against the mortgage and the purchaser with knowledge, because the sale took place after tender of the principal money and interest, is irrelevant to the issues under consideration. If anything, it strengthens the point, which has been made, that the principal money with interest due thereon should have been tendered to the mortgagee in the case on appeal, if the sale was to be prevented.
It is a well established principle of law that a mortgagee will not be restrained on the exercise of his power of sale merely because the mortgagor objects to the manner in which the sale is being arranged or because the mortgagor has commenced a redemption action in court. (See Adams v. Scott, (1859) 7 WR. 213). But the mortgagee will be restrained if the mortgagor pays the amount claimed by the mortgagee into court. (See Hickson v. Barlow (1883) 23 Ch. D. 690).
We are of opinion that in the case on appeal, nothing short of the payment in full of the principal money with interest due thereon on 26th April, 1968 could have restrained the first defendant from the exercise of the right of sale on 29th April, 1968. This ground of appeal is therefore sustained.
It was next submitted by learned counsel for the second defendant that the learned trial Judge erred in law in holding that the exclusion of Section 20 of the Conveyancing and Law of Property Act, 1881, from the mortgage is illegal and irregular.
In dealing with the exclusion of Section 20 of the Act from the mortgage, the learned trial Judge said inter alia: –
“The exclusion takes away the protection of the mortgagor and in effect, in my view, makes the equity of redemption an illusory thing. It is an attempt to clog the equity of redemption for a mortgagor who for a variety of reasons might have defaulted in the payment of his instalmental arrears or of the mortgage debt itself, reasons which court of equity might consider sufficient to give relief. In the absence of any provision in the Law of Property and Conveyancing Act 1881 from a mortgage is illegal and irregular. In the present case it has been submitted that in view of the exclusion of Section 20 of the Law of Property and Conveyancing Act 1881 from “the mortgage, it is unnecessary to give notice to the plaintiff of the sale of his property. My own view is that to exclude Section 20 of the Law of Property and Conveyancing Act 1881 from the mortgage is illegal and a court of equity will ignore it.”
In the above remarkable passage of his judgment, the learned trial Judge has propounded certain propositions of law for which he has provided no authority whatsoever. Moreover, the Act of 1881 to which apparently the learned trial Judge made references is entitled and legally stipulated to be cited as “the Conveyancing and Law of Property Act, 1881.”, and not as the “Law of Property and Conveyancing Act, 1881.”
There is no doubt whatsoever that the learned trial Judge failed to direct his mind properly to the Conveyancing and Law of Property Act, 1881, (44 and 45 Vict. C. 41). Had he properly directed his mind to the provisions thereof, he would have discovered that the Act, after having in Section 19(1) conferred upon the mortgagee certain powers, including power of sale, went on in Section 19(2) and (3) thereof to make the following provisions: –
“19(2)The provisions of this Act relating to the foregoing powers, comprised either in this section or in any subsequent section regulating the exercise of those powers, may be varied or extended by the mortgage deed, and, as so varied or extended, shall as far as may be, operate in the like manner and with all the like incidents, effects, and consequences, as if such variations or extensions were contained in this Act.
19(3)This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and shall have effect subject to the terms of the mortgage deed and to the provisions therein contained.”
It would appear that by virtue of the above provisions, since a contrary intention was expressed in the Mortgage Deed, Exhibit 2, the provisions of Section 20 of the Conveyancing and Law of Property Act, 1881, would have no application thereto. Furthermore, the exclusion of Section 20 of the Act from the Mortgage Deed was certainly a competent and lawful exercise of the statutory power conferred by the Conveyancing and Law of Property Act, 1881. The learned trial Judge was therefore in error in his assertion that there was no provision in the Conveyancing and Law of Property Act, 1881, permitting the exclusion of Section 20 of the Act from the Mortgage Deed. See also Halsbury’s Laws of England 3rd ed. Para. 553 at p. 295.
Finally learned counsel for the second defendant then submitted that the learned trial Judge erred in law in granting to the plaintiff reliefs which he did not claim in his action and in dismissing the counter-claim by the second defendant to which there was no defence filed by the plaintiff. It was also the contention of learned counsel that since there was a valid sale and conveyance of the property by the mortgagee to the second defendant, it was wrong for the counterclaim to have been dismissed. For by so dismissing the counterclaim, the learned trial Judge acted contrary to the provisions of Section 21(2) of the Conveyancing and Law of Property Act, 1881.
As endorsed, the Writ of Summons filed by the plaintiff reads: –
“The plaintiff’s claim against the defendants is for an Order to set aside the purported sale of the plaintiff’s house and landed property known as No. 14, Airport Road, Ikeja by the 1st defendant to the 2nd defendant.
The 1st defendant wrongfully purported to sell the said house to the 2nd defendant on the 1st day of May, 1968.
The plaintiff also seeks an Order of Court to restrain the defendants, their agents and/or servants from interfering with the possession of the plaintiff in respect of the said house.”
As stated in the Statement of Claim filed in the suit, the Writ of Summons and the endorsement thereon formed part of the Statement of Claim. It is to be noted that the endorsement did not include a claim to any declaration of any kind, or an order to set aside the conveyance to the second defendant, or an order for account by the first defendant.
In his final order the learned trial Judge entered judgment for the plaintiff, not in the terms endorsed on his Writ of Summons, but as follows:-
“(1)A declaration that the purported sale and conveyance to the said 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 he shall continue to pay his instalmental payments of 30pounds:2shillings:6d(pence) until the whole of the mortgage debt is repaid.”
There is no doubt whatsoever that the learned trial Judge failed to direct his mind properly to the Conveyancing and Law of Property Act, 1881, (44 and 45 Vict. C. 41). Had he properly directed his mind to the provisions thereof, he would have discovered that the Act, after having in Section 19(1) conferred upon the mortgagee certain powers, including power of sale, went on in Section 19(2) and (3) thereof to make the following provisions: –
“19(2)The provisions of this Act relating to the foregoing powers, comprised either in this section or in any subsequent section regulating the exercise of those powers, may be varied or extended by the mortgage deed, and, as so varied or extended, shall as far as may be, operate in the like manner and with all the like incidents, effects, and consequences, as if such variations or extensions were contained in this Act.
19(3)This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and shall have effect subject to the terms of the mortgage deed and to the provisions therein contained.”
It would appear that by virtue of the above provisions, since a contrary intention was expressed in the Mortgage Deed, Exhibit 2, the provisions of Section 20 of the Conveyancing and Law of Property Act, 1881, would have no application thereto. Furthermore, the exclusion of Section 20 of the Act from the Mortgage Deed was certainly a competent and lawful exercise of the statutory power conferred by the Conveyancing and Law of Property Act, 1881. The learned trial Judge was therefore in error in his assertion that there was no provision in the Conveyancing and Law of Property Act, 1881, permitting the exclusion of Section 20 of the Act from the Mortgage Deed. See also Halsbury’s Laws of England 3rd ed. Para. 553 at p. 295.
Finally learned counsel for the second defendant then submitted that the learned trial Judge erred in law in granting to the plaintiff reliefs which he did not claim in his action and in dismissing the counter-claim by the second defendant to which there was no defence filed by the plaintiff. It was also the contention of learned counsel that since there was a valid sale and conveyance of the property by the mortgagee to the second defendant, it was wrong for the counterclaim to have been dismissed. For by so dismissing the counterclaim, the learned trial Judge acted contrary to the provisions of Section 21(2) of the Conveyancing and Law of Property Act, 1881.
As endorsed, the Writ of Summons filed by the plaintiff reads: –
“The plaintiff’s claim against the defendants is for an Order to set aside the purported sale of the plaintiff’s house and landed property known as No. 14, Airport Road, Ikeja by the 1st defendant to the 2nd defendant.
The 1st defendant wrongfully purported to sell the said house to the 2nd defendant on the 1st day of May, 1968.
The plaintiff also seeks an Order of Court to restrain the defendants, their agents and/or servants from interfering with the possession of the plaintiff in respect of the said house.”
As stated in the Statement of Claim filed in the suit, the Writ of Summons and the endorsement thereon formed part of the Statement of Claim. It is to be noted that the endorsement did not include a claim to any declaration of any kind, or an order to set aside the conveyance to the second defendant, or an order for account by the first defendant.
In his final order the learned trial Judge entered judgment for the plaintiff, not in the terms endorsed on his Writ of Summons, but as follows:-
“(1)A declaration that the purported sale and conveyance to the said 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 he shall continue to pay his instalmental payments of 30pounds:2shillings:6d(pence) until the whole of the mortgage debt is repaid.”
remedy. This provision in the Act was completely ignored by the learned trial Judge. We are in no doubt that by so overriding the provisions of the Act, the learned trial Judge exceeded his jurisdiction; and he was wrong in law to have set aside both the sale and the Deed of Conveyance merely on the ground of irregularity. In any case, having declared the sale void, there was nothing to set aside. For if an act is void, then it is in law a nullity. It is not only bad but incurably bad and there is no need for an order to set it aside for there is nothing to set aside. See MacFoy v. United Africa Company Ltd. (1961) 3 WLR 1405.
Furthermore, there was no defence filed to the counterclaim by the second defendant. Therefore, there were no issues joined between the parties for determination by the court, the allegations in the counterclaim remaining unanswered and unchallenged and ought to have been considered admitted. That being so, the counterclaim ought to have succeeded and judgment should have been entered for the second defendant.
There is so much wrong with the judgment of the learned trial Judge that it would be unreasonable to allow it to stand. The appeals of the first and second appellants therefore succeed. Both are allowed. The judgment of the learned trial Judge (Beckley, J.), dated 22nd December, 1970, together with the order for costs is hereby set aside. Instead, we make the following Orders: –
1.The plaintiff’s claim against the first and second defendants be and it is hereby dismissed in its entirety.
2.Judgment be and it is hereby entered for the second defendant on his counterclaim. Possession of the premises knows as No. 14 Airport Road, Ikeja be and it is hereby granted to the second defendant. And an injunction be and it is also granted to the second defendant restraining the plaintiff from entering and trespassing on the said premises.
And this shall be the judgment of the court.
1.The first and second defendants are entitled to costs in this court and in the court below. Costs to the first defendant in the court below assessed and fixed at N126.00 and in this court assessed and fixed at N230.00.
And
2.Costs to the second defendant in the court below assessed and fixed at N126.00 and in this court assessed and fixed at N230.00.
Other Citation: (1977) LCN/1938(SC)
