S. O. N. Okafor & Sons Ltd V. Nigeria Housing Development Society Limited & Anor (1972)

LawGlobal-Hub Lead Judgment Report

SIR I. LEWIS, J.S.C.

In Suit 0/136/63 in the Onitsha High Court it was given in evidence that the Plaintiffs had on the 10th of September, 1960, entered into an indenture (Exhibit E) with the 1st Defendant in respect of land with buildings thereon numbered as Plot 21 within the Nkissi Road layout in the Government Residential Area, Onitsha, and the parts of that indenture material to this appeal read as follows:

“THIS INDENTURE is made the 10th day of September, 1960 BETWEEN STEPHEN OKOYE NZEMALI OKAFOR & SONS LIMITED WHOSE REGISTERED OFFICE IS AT 42A, OGUTA ROAD ONITSHA, EASTERN REGION OF NIGERIA. (hereinafter called “the Borrower”) of the one part and NIGERIA HOUSING DEVELOPMENT SOCIETY LIMITED whose registered office is at Akuro House, 5 Custom Street, Lagos (hereinafter called “the Nigeria Building Society”) of the other part. WHEREAS:

(A)   The Borrower is entitled to the leasehold land and premises described in the Schedule hereto (hereinafter called “the mortgaged premises”) for the unexpired residue of the term of years created by the lease (hereinafter referred to as “the lease”) mentioned in the said Schedule, subject to the yearly rent and to the covenants on the part of the Lessee and the conditions by and in the Lease reserved and contained.

(B)   The Nigeria Building Society at the request of the Borrower has agreed to advance to the Borrower the sum of 11,330pounds (Eleven Thousand Three Hundred and Thirty Pounds), of which the sum of 10pounds (Ten pounds) is payable on the execution hereof and the balance shall, subject to hereinafter provided, be paid in accordance with the provisions hereinafter appearing upon having the repayment thereof together with payment of interest thereon secured in the manner hereinafter appearing:

NOW in pursuance of the said agreement and in consideration of the sum  of 10pounds (Ten Pounds) paid by the Nigeria Building Society to the Borrower (the receipt whereof the Borrower hereby acknowledges) (and in consideration of the Covenant by the Nigeria Building Society hereinafter contained for making further advances.

THIS INDENTURE WITNESSETH:

1.   The Borrower covenants with the Nigeria Building Society to pay to the Nigeria Building Society on the 10th day of March, 1961 the said sum of 10pounds (Ten Pounds) with interest thereon at the rate hereinafter prescribed from the date hereof AND ALSO to pay to the Nigeria Building Society the money which shall hereinafter be advanced to the Borrower pursuant to the covenant for that purpose hereinafter contained on the 31st day of December or the 30th day of June which next happens after the date of the advance, with interest thereon at the rate hereinafter prescribed from the date of each advance. AND ALSO so long as any principal money remains due hereunder after the date for payment thereof (and whether or not any order or judgment in respect thereof has been obtained) to pay to the Nigeria Building Society on the last day of every month interest calculated in the manner hereinafter appearing at the rate hereinafter prescribed.

2.   The Borrower as Beneficial Owner hereby grants and demises unto the Nigeria Building Society ALL the mortgaged premises TO HOLD UNTO the Nigeria Building Society for the residue of the term granted by the Lease except the last three days thereof, but subject to the proviso for redemption hereinafter contained.

3.  PROVIDED ALWAYS that on payment on the date hereinbefore fixed for payment thereof by the Borrower to the Nigeria Building Society of the principal sum hereinbefore convenanted to be paid with interest thereon from the date aforesaid at the rate hereinafter prescribed the mortgaged premises shall at the request and cost of the Borrower be duly surrendered to him.

4. The Nigeria Building Society hereby covenants with the Borrower that the Nigeria Building Society will, unless the power of sale applicable hereto shall have become exercisable, advance to the Borrower the balance of the said sum of 11,330 (Eleven Thousand Three Hundred and Thirty Pounds) in one sum or by instalments if and when the Nigeria Building Society is satisfied that the state of the mortgaged premises justifies the advance.

5. (1) Subject to the provisions of clause 6 hereof, if the Borrower pays to the Nigeria Building Society on the 10th day of October, 1960 and on the last day of every succeeding month the sum of 143:19:9d (One Hundred and FortyThree Pounds Nineteen Shillings and Nine Pence) until the whole of the principal money hereby secured and interest calculated in accordance with clause 6 hereof has been fully paid, and if there shall not have been any breach of any obligation, statutory or otherwise, binding on the Borrower or of any of the covenants, whether express or implied, herein contained and on his part to be observed and performed (other than the covenants in clause 1 herein for payment of the principal money and interest thereby secured) than the Nigeria Building Society shall accept payment of the principal money and the interest thereon by instalments at the times and in manner aforesaid, and will not require payment of such Principal money otherwise than by such instalments.

(2) Notwithstanding the provision for the payment of the principal money thereby secured by instalments, but without prejudice to that provision, such principal money shall be deemed to become due within the meaning of the Conveyancing and Law of Property Act 1881, and for all the purpose of that Act, on the date or dates prescribed by clause 1 hereof’.
Interest was subsequently provided for at the rate of 81/1 per annum.

The 1st Defendants had advertised the property in question, and to which Exhibit “E” pertained, for sale and paragraphs 8, 9, 10, 11 and 18 of the Statement of Claim read: