The court cannot under such circumstance made decree specific performance where there was or there is failure to pay the purchase price under a contract for sale of land as this constitutes a fundamental breach which goes to the root of the contract. The long and short of it is that no sale has occurred. Nidocco Ltd. V. Gbajabiamila (2013) 14 NWLR (1374) 350; Nlewedim V. Uduma (1995) 6 NWLR (Pt. 402) 383 @ 400 – 401
Where a purchaser of land makes part payment of the purchase price and defaults in completing the balance, there can be no valid sale even if the purchaser is in possession. Such possession is incapable of defeating the vendor’s title. Achonu V. Okuwobi (2017) 4 SC (Pt. 11) 52.
As in all other thing, one cannot convey what he does not possess, meaning that a person without valid title to land has none to convey. This is intrinsically embedded in the maxim “nemodat quod non habet” meaning “you cannot give what you do not have”. Wuyah V. Jama’a Local Gov’t., Kafanchan (2013) All FWLR (Pt. 659) 1171 CA; Regd. trustees A.C.C v Regd. trustess G.C.C (2021) HELAR ratio 7
Any auction sale that has not been successfully challenged by anyone vest a valid title in the purchaser. See Section 50 of the Sheriffs and Civil Process Act, Cap S6 Laws of the Federation of Nigeria 2004. Osidele & ORS. V. Sokunbi (2012) 15 NWLR (Pt. 1324) 470.
If the following condition are present in an auction sale of a mortgaged property, the court will be wary to set aside such sale: a) That the mortgagor did indeed mortgage the property in dispute to the mortgagee. b) The loan or instalment has become payable. c) Notice of demand of repayment of loan from the mortgagee to the mortgagor. d) The power of sale under the mortgage agreement has arisen. e) Pre-condition of notice of sale is given to the mortgagor by the mortgagee or his agent. f) The power of sale was exercised and the title in the property passed to the purchaser. See Oguchi V. F.M.B (Nig) Ltd. (1990) 6 NWLR (Pt. 156) p. 330; Bank of the North V. Alhaji Mumuni Muri (1998) 2 NWLR Pt. 536 P.153; Gbadamosi V. Kabo Travel Limited (2000) 8 NWLR 875 P.318; Agboola V. UBA Plc. & Ors. (2011) 11 NWLR (Pt. 1258) 375.
In challenging an auction sale of land on the ground that the defendant has no title to the land sold, the appropriate remedy for a third party is by bringing an action for declaration. Production of documents of title duly authenticated in the sense that their due execution must be proved, which is one of the five (5) ways of proving or establishing title to ownership. The duty of the trial Judge is to weigh the evidence on the imaginary scale and determine which evidence of the two is weightier. Okoko V. Dakolo (2006) 14 NWLR (Pt. 1000) 401; Ibikunle V. Lawani (2007) 3 NWLR (Pt. 1022) P. 580; Agboola V. UBA Plc & Ors. (2011) 11 NWLR (Pt. 1258) 375.
A lease is a grant of exclusive possession of property to last for a term of years or periodic tenancy. Usually with the reservation of rent. It is essential that a lease shall specify the period during which the lease is to endure and the beginning and end of the term. See Star Finance & Property Ltd. V. NDIC (2012) All FWLR (Pt. 648) 895 pp. 908-909, paras. G-A; Osborn’s Concise Law Dictionary, 9th Edition, p.228.
A valid lease must contain the following: a) Words of demise. b) Complete agreement leaving no ambiguity as its purport. c) The identification of the parties to the agreement. d) The premises must be clearly identified. e) Commencement and the duration of the agreement. f) The rent for the demised property must be clearly stated. See Star Finance & Property Ltd. V. NDIC (2012) All FWLR (Pt. 648) 895; Osho V. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157; United Bank for Africa Ltd. V. Tejumola (1986) 4 NWLR (Pt. 760 662; Okechukwu V. Onuorah (2000) 12 SC (Pt. 11) 104.
Once a lease agreement is altered, it loses its authenticity. The presumption of regularity will be altered once a lease agreement or its attachments are tampered with. See Dakolo & Ors. V. Rewance – Dakolo & Ors. (2011) 16 NWLR (Pt. 1272) 22.