Jackie Phillips V. Arco Ltd (Pharmaco Biological Institute) (1971)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C. 

In Suit No. LD/142/68 the plaintiff’s writ read –

”The plaintiff’s claim against the defendants is for:-

(a) A declaration that the mortgage subsisting between plaintiff and the defendants dated 29th June, 1964 and registered as No. 54 at page 54 in Volume 1225 of the Lands Registry in Lagos has been discharged.

(b) An order compelling the defendants, their agent or servants to execute a reconveyance of the property.

(c) An injunction restraining the defendants, their agent or servants from selling the property the subject matter of the above mortgage.”

Paragraphs 1 – 11 of his statement of claim read –

“1. The plaintiff is the owner in fee simple of the property known and situate at Onitiri village, Yaba Mainland, registered as No. 38 page 38 in Volume 1217 in the Lagos Lands Registry.

2. Sometime in 1964, the plaintiff agreed with the defendants to form a company known as Nigerian Pharmaceutical Company Limited (Nigarco) and that the plaintiff should have shares to the value of 5,000 pounds, which will be allocated in parts from time to time.
3. In furtherance of this agreement, a mortgage was executed in favour of the defendants for the sum of 5,000 pounds for the consideration of the above, although, no such amount was received by the plaintiff.
4. Between the formation of the company and 21st September, 1964, 3760 shares of 1 pounds each were credited to the plaintiff in the books of the company but no share certificate was issued.
5. On the 22nd March, 1965 whilst in Milan, the plaintiff received a letter from the defendants requesting the plaintiff to:-

(a) ask for permission of ‘Nigarco’ to transfer his shares to the defendants;

(b) to submit his resignation from the company;

(c) to hand-over the company’s properties in return for the re-conveyance of the mortgaged property.

6. The plaintiff discussed the content of the letter of request with the defendants and having expressed his lack of control over one Mr. Obi who was also asked to resign, the defendants asked the plaintiff to carry out his own side of this assignment which the plaintiff agreed to.
7. On the 23rd March, 1965, the plaintiff addressed a letter of resignation to the company and asked for permission to transfer his shares to Industrial Chemical and Pharmaceutical Holdings Limited, (the nominee of the defendants) to which the shares were transferred.
8. On the 25th March, 1965, the defendants’ President acknowledged the resignation and transfer of shares to Industrial Chemical and Pharmaceutical Holdings Limited by a letter wrongly dated the 23rd of March, 1964, and promised to have the mortgage deed reconveyed by their lawyers in Lagos after the handing over of the property of the company by the plaintiff.
9. Before the plaintiff left Italy, the defendants sent a telegram to the plaintiff informing him that all the documents have been sent to Mr. Bentley of Lagos.
10. On arrival in Lagos, he contacted Mr. Bentley who asked after a series of meetings that the inventory of the company’s properties be taken for a handing over to him.

11.The said inventory was taken and the plaintiff was prepared to hand-over to him when he received a letter from Mr. Bentley saying that the offer of reconveyance has been withdrawn because plaintiff asked for his travelling expenses to Rome.”

The plaintiff further averred in his statement of claim that the defendants failed to reconvey the mortgaged property to him and indicated an intention to sell it.

In regard to the mortgage the defendants in paragraph 4 of their statement of defence pleaded –