Alhaja K. F. Ibiyeye V. A. A. Fojule & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The 1st respondent was the plaintiff at the Ilorin High Court of Kwara State where he instituted against the 2nd and 3rd respondents and appellant respectively as 1st, 2nd and 3rd defendants, a suit claiming jointly and severally against them the following reliefs:

“(a) A declaration that the plaintiff only owes the 1st defendant a maximum of N30,158.12k as at 31-12-92.

(b) A declaration that the 1st defendant can only charge 6 per cent interest per annum on the N37,500.00 paid to the plaintiff.

(c) The purported sale of the plaintiff’s property to the 3rd defendant is null and void as it is contrary to section 19 of the Auctioneers Law

The parties filed and exchanged pleadings after which the suit was heard by Kawu J. At the trial, the plaintiff testified in support of his claim and tendered two documentary exhibits. He called one witness. The 1st and 2nd defendants called no evidence. The 3rd defendant (now appellant) testified on oath and tendered three exhibits. On 1-8-97, the trial Judge in his judgment concluded in these words:

“Section 19(1) of the Conveyancing Act, 1881 conferred on a mortgagee the statutory power of sale when the debt is due. This however can be done only after a notice in writing has been served on the mortgagor. See Darocha v. Hussain (1958) SCNLR 280 holding 7 at page 281. Exhibit D1 dated 4th September, 1990 is both a notice of demand and of intended sale by the 1st defendant to the plaintiff (in) compliance with the decision in Darocha’s case supra.

I am satisfied that the 3rd defendant is a bona fide purchaser of property for value without notice.

I accordingly hold that the sale to the 3rd defendant is not null and void as contended by the plaintiff. I also resolve this issue in the negative.

All the declaratory reliefs brought by the plaintiff fail and are hereby dismissed.”

The plaintiff was dissatisfied with the judgment of the trial court. He brought an appeal against it before the Court of Appeal, Ilorin Division (hereinafter called the ‘court below’). The court below in its judgment on 13-7-2000 allowed the appeal in part. Directly relevant to this appeal is the conclusion of the court below that the sale of the mortgaged property to the 3rd defendant (now appellant) by the 2nd defendant (now 3rd respondent) on the instruction of 1st respondent (now 2nd respondent), was null and void.

The 3rd defendant before the court of trial to whom the property was sold was dissatisfied with the judgment of the court below. She has brought this appeal against the judgment. In the appellant’s brief filed, the issues for determination in the appeal were identified as the following:

“(i) Whether the court below was not in error when it held that the Conveyancing Law of Property Act, 1881 (then a statute of general application in Kwara State) was not applicable as to length of notice of auction sale and that the applicable law was the Auctioneers’ Law.

(ii) Whether non-compliance with the provision of section 19 of the Auctioneers Law as to length of auction notice automatically renders the sale carried out by the 3rd respondent on behalf of the 2nd respondent in professed exercise of the latter’s power of sale as an unpaid mortgagee invalid and void.