UDHUDE EMARIERU & ANOR V SAMUEL OVIRIE & ORS
August 6, 2025ALRAINE (NIG) LIMITED V M.A. ESHIETT
August 6, 2025Legalpedia Citation: (1977-02) Legalpedia (SC) 18991
In the Supreme Court of Nigeria
Fri Feb 18, 1977
Suit Number: SC. 440/1975
CORAM
UDOMA, JUSTICE, SUPREME COURT
OKAY ACHIKE JUSTICE, SUPREME COURT
MADARIKAN, JUSTICE, SUPREME COURT
PARTIES
NIGERIAN HOUSING DEVELOPMENT SOCIETY LTD
ALHAJI ABDUL RASAQ
APPELLANTS
YAYA MUMUNI
RESPONDENTS
AREA(S) OF LAW
CONVEYANCING-MORTGAGE-POWER OF SALE
SUMMARY OF FACTS
The appellant entered into a mortgage agreement with the respondent. The respondent was in arrears of the agreed instalmental payment in breach of his obligations under the Deed so the appellant exercised the power of sale in the agreement.
HELD
The court held that the respondent by his breach put himself at the mercy of the appellant, because the power of had arisen.
ISSUES
1. Whether on the 29th April, 1968, when the mortgage property was sold the power had arisen
2. Whether on that date the plaintiff was legally in breach of the terms of his covenant to repay the principal money and interest by regular monthly payment
3. Whether 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 and since there was a valid sale and conveyance of the property by the mortgagee to the second defendant, it was wrong for the counter-claim to have been dismissed
RATIONES DECIDENDI
THE WELL-ESTABLISHED PRINCIPLE OF LAW CONCERNING A MORTGAGOR AND THE MORTGAGEE ON THE EXERCISE OF THEIR POWER.
“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. But the mortgagee will be restrained if the mortgagor pays the amount claimed by the mortgagee into court.” Per SIR UDO UDOMA, JSC.
CASES CITED
ROBERTSON V. CILIA (1959) 1 WLR 1502
HINKLEY AND SOUTH LEICESTER PERMANENT BENEFIT BUILDING SOCIETY V. FREEMAN (1941) CH 32
BIRMINGHAM CITIZENS PERMANENT BUILDING SOCIETY V. COUNTY & ANOR (1962) CH 883
JENKINS V. JONES (1860) 2 GIFFS 99
STATUTES REFERRED TO
LAW OF PROPERTY AND CONVEYANCING ACT 1881
