KASUNMU V. SCOTT & ORS

• Pages: 227-231

KASUNMU V. SCOTT & ORS.

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227

KASUNMU V. SCOTT & ORS.

5

MAROUF ADELEYE KASUNMU

V.

10 J.M. SCOTT AND OTHERS

SUPREME COURT OF NIGERIA.

ADEMOLA,



C.J.N.

COKER,

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J.S.C.

15

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LEWIS,



J.S.C.

30th June, 1967

APPELLANT

RESPONDENTS

SUIT NO. SC 461/1965

Land Law - Mortgages - Mortgagee's power of sale not affected by attachment

and sale of mortgagor's interest

20

Civil Action - Practice and Procedure - Execution of judgments - Sale of land

under writ of fifa - Purchaser of mortgagor's interest takes subject to

existing encumbrances - Sheriffs and Civil Process Act, s.50.

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ISSUES:

1.

Where land under a mortgage agreement is sold (under a writ of

fi-fa)

does

the purchaser of the mortgagor's interest takes the subject to existing

encumbrances.

2.

Whether a mortgagee's power of sale is affected by attachment and sale of the

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mortgagor's interest.

FACTS:

One Laja (L) owned land in Lagos which he mortgaged to a Miss Peters (P).

The first three defendants (respondents) were in possession of the land as L's ten-

ants. On 28th July, 1961,the fourth defendant bought the property on its sale by

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the Deputy Sheriff under a writ of

fi-fa

issued at the instance of a judgment credi-

tor of L's. In August 1961, P as mortgagee advertised the property for sale. It was

sold on the 5th of October to the plaintiff and was conveyed to him in December.

On 12th March, 1962 the fourth defendant obtained from the court a certificate of

title, certifying that he had been declared the purchaser of L's right, title and in-

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terest in the property. The defendants all denied the plaintiff's title and on his claim

for possession the trial Judge held that the order attaching the property bound the

property in the hands of the person in possession, and that P was not free to dis-

pose of it, with the result that the sale to the plaintiff was by law null and void. On

appeal by the plaintiff,

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HELD:

1. The fourth defendant, having purchased the right, title and interest of L, took

the property subject to existing encumbrances. P's power of sale under the

mortgage had been effectively exercised and the plaintiff was entitled to

judgment.

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CASES REFERRED TO IN JUDGMENT:

1.

Ghana Commercial Bank v. Chandiram

[1960 A.C. 732.

2.

Dadzie v. Kojo

(1940) 6 W.A.C.A. 139.