Electricity Corporation Of Nigeria V Chief M. A. Okupe (1967)

LawGlobal-Hub Lead Judgment Report

COKER,J.S.C

The appellants are the plaintiffs in action instituted in the High Court of Lagos against the respondent who was the defendant thereto and in which the writ was endorsed as follows:-

‘1. The plaintiff claims the sum of £ 14,000 (fourteen thousand pounds) against the defendant as obligor under a bond dated 19th day of November, 1963, whereby the defendant became bound to the plaintiff in the sum of £ 14,000 (fourteen thousand pounds) to be paid by the defendant to the plaintiff subject to a condition there under written that if the defendant should execute in favour of the plaintiff a Deed of Conveyance transferring the fee simple absolute and in possession to fourteen acres of land at IKATE, ITIRE, more properly described in Plan No. ECN/WR/41 and there is no failure of the defendants title due to any case whatsoever then the said bond should be void.

2. The defendant has failed to establish his paramountcy of title and in spite of repeated demands by the plaintiff; has failed to execute the said Deed of Conveyance and has failed to pay to the plaintiff the said £14,000 (fourteen thousand pounds) whereby the said bond became due.’

Pleadings were ordered and filed. Paragraphs 8, 9 and 10 of the plaintiffs Statement of Claim read as follows:-

‘8. The defendant entered into a bond on the 19th day of November, 1963 to repay to the plaintiffs the said £ 14,000 (fourteen thousand pounds) should he fail to execute a deed of conveyance in favour of the plaintiffs at the request of the plaintiffs or should there be any failure of the defendants title due to any case whatsoever.

9. That the defendant in spite of repeated demands by the plaintiffs has failed to execute the said deed of conveyance.

10. That the said land at Ikate, Itire, more properly described in plan number ECN/WR/41 dated the 8th day of July, 1964, is in the effective occupation of other third parties, and is part of the land forming the Area Of Law of Suit No. IK/92/63 between I. S. John versus Aderogba Ajao and Others.’

By his own Statement of Defence the defendant joined issue with the plaintiffs on those three paragraphs; at the trial both parties gave oral evidence in support of their pleadings and the plaintiffs in addition produced some documentary evidence. One of the documents produced in evidence by the plaintiffs is the bond on which the action was based. It was admitted in evidence as Exhibit E and is in the following terms:-

‘BY THIS BOND, I, Chief M. A. Okupe, Managing Director of Agbonmagbe Bank Ltd., 162 Herbert Macaulay Street, Ebute Metta, Lagos, Nigeria (herein after called the vendor which term shall, where the context so admits, include his heirs and successors in title) am held and firmly bound to the Electricity Corporation of Nigeria, a body corporate duly established and incorporated under the Electricity Corporation of Nigeria Act No. 15 of 1950, (hereinafter called the purchasers which term shall where the context so admits, include the assigns and successors in title of the Purchasers) for the payment to them of the sum of £14,000 (fourteen thousand pounds), the purchase price of fourteen acres of land which is held by the vendor for an estate in fee simple in possession free from encumbrances at Ikate, Itire and which forms part of all that parcel of land described in the conveyance dated the 9th day of June, 1962, and registered as No. 16 at page 16 in vol. 561 in the Lands Registry Office at Ibadan, Western Nigeria.

Sealed with my Seal this 19th day of November, 1963.

WHEREAS the purchasers have this day at the request of the vendor paid to him the sum of £14,000 (the receipt of which sum the vendor hereby acknowledges) upon an express agreement that the vendor shall execute in favour of the purchasers as soon as this is ready, a Deed of Conveyance of the said area and piece of land at Ikate.

NOW THE CONDITION of the above written Bond is such that if the vendor shall execute in favour of the purchasers as soon as called upon to do so, the said Deed of Conveyance, and if there is no failure of vendors title due to any case whatsoever, then the above written Bond shall be void but otherwise, the same shall remain in full force and effect.’

After hearing evidence from both sides, the learned trial judge in a considered judgement dismissed with costs the plaintiffs action and the present appeal is from that judgement.