Notice of Breach

It must be made clear that one cannot make a proper sale of immovable property which he knows is encumbered but fails to disclose same to the buyer. This kind of behavior is fraudulent and the seller cannot be allowed to keep the money he collected from the sale. I agree with the Court below that the transfer of the property from the seller to the buyer in a document cannot be the end of the sale. The seller must take steps to put the buyer into physical possession free from all encumbrances. Where the seller fails to put the buyer in physical and peaceable possession of the property, the buyer is entitled to sue for damages plus restitution of the money paid to the seller with interest.
In Sabru Motors Ltd v. Rajab Enterprises Nig. Ltd (2002) 7 NWLR (Pt. 766) 423, also reported in (2002) LPELR-2971(SC) at pages 26-27 paragraphs F-B, this Court held as follows:-
"I think it is correct view of the law to state that where after the buyer has paid the price (or part of it) to the seller, the seller fails to deliver the goods, he may either sue for damage or for restitution of the money paid to the seller. If he sues for damages, the assessment should include the amount paid to the seller but he would have to prove and he is subject to all the rules on damages, such as remoteness of damage and the doctrine of mitigation."
See also Adesanya v. Otuewu & Ors (1993) 1 NWLR (Pt. 270) 414 also reported in (1993) LPELR-146 (SC) at page 33 paragraphs E-F.

One of the main issues for determination in this appeal is whether the notice of breach of covenant dated 5th July, 1982, which is Exhibit B, sufficiently complied with the provisions of Section 14(1) of the Conveyancing Act, 1881.The Court of Appeal held that it did not, and I entirely agree with them.
In Halsbury's Laws of England, 3rd Edition, Volume 23 page 675 paragraph 1401, the nature of the notice of breach to be given is set out as follows:-
"1401. What notice required. The notice must be so distinct as to direct the attention of the tenant to the particular things of which the landlord complains in order that the tenant may have an opportunity of remedying them before an action to enforce the forfeiture is commenced; it must be sufficient to inform the tenant of what is complained of, but it is unnecessary that it should identify every defect or amount to a detailed specification of the work to be done. It will not be bad because, in attempting to enumerate the specific breaches, it includes some breaches which have not been committed. It is not necessary that it should require payment of compensation in money; nor, where the breach is incapable of remedy is it necessary that the notice should require it to be remedied. The notice may state a time within which the breach is to be remedied; but the landlord will not be able to re-enter at the end of the stated period unless the time is in fact reasonable."