Farid Khawam V. Fouad Michael Elias (1960)

LawGlobal-Hub Lead Judgement Report

ABBOTT, F.J

This is an appeal by the defendant against the order of the High Court of the Western Region holder at Ibadan, made on the 21st August, 1959, entering judgment for the plaintiff “on his claim against the defendant.” This order was made on a Motion on Notice for judgment to be entered for the plaintiff in default of the filing of a Statement of Defence.

Chief Rotimi Williams, Q.C., and Miss Grant appeared for the appellant, and Chief H. O. Davies and Mr. Adewunmi for the respondent.

It is necessary for the purposes of this judgment to go into certain matters of the history of this case, beginning with the nature of the claim advanced by the plaintiff in his Writ. This reads as follows:-

“The Plaintiff seeks as against the Defendant a Declaration that he is entitled in equity to the property known as 21 Lebanon Street, Ibadan, Western Region of Nigeria, for the residue unexpired of the term created by a Lease dated the 31st day of October, 1945 and registered as No. 28 at Page 28 in Volume 680 of the Lands Registry in the office at Ibadan.

The said Lease was made between Mrs. Flora Atunwaola Soetan, Dr. Henry Aremu Aderonmu Doherty and Mrs. Rosaline Adetutu Snares as Lessors and the Defendant as Lessee with effect from the 1st day of February, 1944 for a term of 40 years and the term was later extended by a further period of 30 years.

On the 12th June, 1954, the Defendant borrowed from the Plaintiff the sum of £10,000:0s:0d and agreed with the Plaintiff to have the repayment thereof secured by a Mortgage of the residue unexpired of the said term.

The Plaintiff further claims possession of the said premises No. 21 Lebanon Street, Ibadan, Western Nigeria, for the residue unexpired of the said term.”

Concurrently with his application for the Writ the plaintiff applied for an order that the Writ of Summons be served upon Alfred Khawam, described in the Notice of Motion as the agent of the defendant, and that such service be deemed sufficient service on the defendant.

The Motion was supported by an Affidavit, of which paragraph 2 reads as follows:–

“That the Defendant borrowed from me the sum of £10,000-Os-Od upon having the repayment secured by a mortgage on the residue unexpired of the Lease of the property at 21 Lebanon Street, Ibadan, dated 31st October, 1945 and registered as No. 28 at Page 28 in Volume 680 of the Lands Registry in the office at Ibadan and made between Mrs. Flora Atunwaola Soetan, Dr. Henry Aremu Aderonmu Doherty and Mrs. Rosaline Adetutu Soares as Lessors and the Defendant as Lessee.”

Paragraph 4 of the Affidavit avers that the defendant was then outside the jurisdiction of the Court, being away from this country, and that letters sent to him at his address in Germany had neither been acknowledged nor returned to the plaintiff. Paragraph 5 states that Alfred Khawam collects rents on behalf of the defendant and that Alfred Khawam must therefore be aware of his present address; and paragraph 6 states the belief that if the Writ is served on Alfred Khawam the same will come to the knowledge of the defendant. The order for substituted service was thereupon made and while there is on the record no Affidavit of service it appears that when the matter came before the Ibadan High Court on the 9th December, the Court was satisfied that service had been effected, presumably upon Alfred Khawam.

On that occasion pleadings were ordered and a Statement of Claim was duly filed. For reasons which will afterwards appear, it is important to set out paragraph 5 of this Statement of Claim, which reads as follows:-

By an Indenture dated the 12th June, 1954, and made bet-ween the plaintiff as ‘Lender’ and the defendant as ‘Borrower’, the defendant acknowledged the receipt of £10,000 lent to him by the plaintiff and secured the repayment of the said sum by a Sub-Lease of portion of the parcel referred to in paragraph 3 above for the residue unexpired of the term expressed in the said lease.”