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IRREGULAR EXERCISE OF POWER OF SALE – REMEDY LIES IN DAMAGES

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Dictum

In Sanusi v. Daniel (1956) SCNLR 288, the Federal Supreme Court per Jibowu Ag. FCJ, after considering section 21(2) of the Conveyancing Act in almost similar situation as this case observed at page 291 thus: “The appellant’s complaint is against an irregular exercise of the power of sale on the ground that there was a contravention of section 19(1) of the Sales by Auction Ordinance. It seems to me that the title of the 2nd respondent cannot be impeached since the property was conveyed to him, and that the appellant’s remedy is in damages against the 1st respondent as provided by section 21(2) of the Conveyancing Act, 1881.”

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FAILURE TO PAY FULL PURCHASE PRICE MEANS NO VALID SALE

For a sale under customary law, such as the sale to the plaintiff in 1965, this Court has in A.O. Odufuye v. Jacob Adeoye Fatoke (1977) 4 SC. 11, accepted the proposition of law that where the purchaser fails to pay the full purchase price there is no valid sale. This must be so, for to constitute a valid sale of land under customary law, three essential ingredients are required, viz: (i) Payment of the purchase price (ii) Purchaser is let into possession by the vendor (iii) In the presence of witnesses See: Aboyade Cole v. S.R.. Folami (1956) SCNLR 180; (1956) 1 FSC 66; Akingbade v. Elemosho (1964) 1 All NLR 154; Ogunbambi v. Abowaba, 13 WACA 222, 225. It follows, therefore, that where the purchase price is not fully paid there can be no valid sale, notwithstanding that the purchaser is in possession.

— M.E. Ogundare, JSC. Odusoga v Ricketts (1997) – SC.57/1990

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ALIENATION VS REVOCATION

“Alienation” refers to the transfer of the right by the holder to another person or creation of interest in the estate for the benefit of another person. In other words, alienation is the unilateral and voluntary act of the holder of the right to transfer his right or create interest in the right, subject to the approval of the consenting authority, in contrast with passing the right or creating the interest in favour of a third party by operation of law. On the other hand, “revocation” means cancellation or recall of the grant made to the holder of the right of occupancy by the grantor as provided by sections 28 and 38 of the Land Use Act. Within the scheme of the Act, revocation may be punitive as a sanction for breach of the terms of grant as stipulated by the Act; it may be for policy consideration such as the requirement of the land for municipal, industrial or aesthetic development.

– Olagunju JCA. Ofodile v. COP (2000)

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DIFFERENCE BETWEEN VOID & VOIDABLE SALE

For the difference between a void and a voidable sale is that where a sale is void it has to be so declared and, if asked for, be set aside. But where it is voidable, whether or not it will be set aside will depend upon the facts and circumstances of the case.

– Nnaemeka-Agu, JSC. Adejumo v. Ayantegbe (1989)

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DISPUTE AS TO LOAN AMOUNT CANNOT AFFECT RIGHT OF RESALE

To start with, it is settled law that a mortgagee’s power of sale or foreclosure cannot be affected merely because the amount due under the mortgage agreement is in dispute. See Omidiji v. F.M.B. (2001) 13 NWLR (Pt. 731) 646 and B.O.N. Ltd. v. Akintoye (supra). The law is that a mortgagee will not be restrained nor can his power of foreclosure be affected by the exercise of his power of sale merely because the amount due is in dispute or the mortgagor has commenced a redemption action in court. See Intercity Bank Plc. v. F and F F (Nig.) Ltd. (2001) 17 NWLR (Pt.742) 347.

– Augie JSC. Bank v. TEE (2003)

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SALE OF LAND CAN BE EITHER UNDER CUSTOMARY OR ENGLISH LAW

It is axiomatic in our jurisprudence that there are two clear and distinct ways in which land can be properly and rightly sold, valid acquired and legally transferred in Nigeria and these are either under customary law, or under the received English law.

– Abiru, JCA. Okoli v. Gaya (2014)

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DIFFERENCE BETWEEN A VOID & VOIDABLE SALE

In other words, what is the difference between a sale which is void and a sale which is voidable? The distinction between a transaction which is void and one which is only voidable is that if a transaction is void, it is in law a nullity, not only bad, but incurably bad and nothing can be founded on it, for having no life of its own, it cannot vivify anything. But if a transaction is voidable, it has some life and it remains good until set aside. It is here that the rules of equity or natural justice may well be taken into account by the Court in deciding whether it will, at its discretion set the transaction aside or not.

– Oputa, JSC. Adejumo v. Ayantegbe (1989)

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