LEGAL PRINCIPLE: PROPERTY LAW — Mortgage — Power of Sale — Protection of Bona Fide Purchaser
PRINCIPLE STATEMENT
Where a conveyance is made in professed exercise of the power of sale, the purchaser's title shall not be impeached on the ground that no case arose to authorise the sale, that due notice was not given, or that the power was improperly exercised. The remedy of the person damnified is damages against the person exercising the power.
RATIO DECIDENDI (SOURCE)
Per Uwaifo, JSC, in Okonkwo v. Cooperative & Commerce Bank (Nigeria) Plc (2003) NLC-581998(SC) at p. 15; Paras C–D (citing section 21(1) of the Conveyancing Act, 1881).
"Where a conveyance is made in professed exercise of the power of sale conferred by this Act the title of the purchaser shall not be impeached on the ground that no case has arisen to authorise the sale, or that due notice was not given or that the power was otherwise improperly or irregularly exercised, but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power."
EXPLANATION / SCOPE
A bona fide purchaser under a mortgagee’s power of sale is protected. The principle applies to mortgage law. The purchaser’s title cannot be impeached for irregularities. The rule is statutory. The mortgagor’s remedy is damages against the mortgagee. The principle is well-established.
