NIGERIAN HOUSING DEVELOPMENT SOCIETY LTD. & ANOR VS YAYA MUMUNI

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.