A. Savage & Ors V. O. Uwechia & Ors (1972)

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A. FATAYI -WILLIAMS, J.S.C 

On the 24th day of August, 1954, the plaintiff, at Onitsha, gave a loan of 780(pounds) to one S.O. Rotibi who promised to repay the said loan within three months and gave the plaintiff a promissory note to that effect. Just over a week later, the said Rotibi died at Owerri leaving a Will in which he appointed the three defendants his executors and trustees. Probate of the said Will was obtained on 28th July, 1956.

When the loan was not repaid, the plaintiff, in suit No. O/22/55 commenced in the Onitsha High Court, started proceedings against the defendants for specific performance of the agreement under which the deceased Rotibi promised to repay the loan. The particulars of claim in the said suit (as shown in the proceedings Ex. “C”) read:

“1. By an agreement agreement to convey made between the plaintiff and S.O. Rotibi on the 24th day of August, 1954, at Owerri, the said S.O. Rotibi agreed to convey to the plaintiff for the sum of 780(pounds) after three months from the aforementioned date his freehold property with the appurtenances there to situate at No. 6 New Market Road, Onitsha.

2. The plaintiff has a copy of the said agreement to convey to which the plaintiff will at the trial refer for its full terms and effect.
3. Notwithstanding repeated requests by the plaintiff’s agent, the trustees of the said S.O. Rotibi have neglected and refused to take any steps towards the completion of the said agreement to convey the said property.
4. The plaintiff has performed his obligations to the said S.O. Rotibi (whose trustees the defendants are) which led to the said agreement to convey.”

A copy of the promissory note referred to above was admitted at the hearing of that case as Exhibit “A” and its terms read-

“Owerri, August, 24, 1954.

I promise to pay to Mattew Uwechia or order three months after date the sum of 780(pounds) for value received or in default to convey to him all these messuages together with appurtenances thereto situate at No. 6 New Market Road in the township of Onitsha, to hold the same unto the said Mattew Uwaechia or order in fee simple.

(Sgd.) S.O. Rotibi.”

The claim was dismissed in the Onitsha High Court. The plaintiff thereafter appealed to the Federal Supreme Court which allowed the appeal and made an order for specific performance. On a further appeal by the defendants to the Privy Council, the appeal was allowed and the plaintiff’s claim was dismissed (see Savage v. Uwechia (1961) 1 All ER 830). Referring to the evidence adduced before the trial court, Lord Hodson, who delivered the judgment of the Privy Council, observed at p. 831 as follows:-

“On this evidence, the case proceeded on the footing that the deceased and, after his death, the appellants, who stood in his shoes although they did not obtain probate until July 28, 1956, were in default, in that the 780 (pounds) had not been paid.”

He further observed at pp. 832 as follows:-

“It would be relevant also to take into consideration the procedure of the appellants who, though standing in the shoes of the deceased, had at the time of the default not yet obtained probate. Even if they could have raised the money before the expiration of the three months, they would have been under a duty to consider the interests of the beneficiaries entitled to share in the estate of the deceased under his will.”

Meanwhile, on 29th December, 1957, that is, before the Privy Council allowed the appeal and dismissed the plaintiff’s claim, the first defendant in his capacity as an executor of the estate wrote a letter (Ex. “B”) to all the tenants living in the house of the deceased at No. 6, New Market Road, Onitsha and sent a copy to the plaintiff. The contents of the said letter read –

“Re Mathew Uwechia Versus Late Rotibi’s Executors in court: