S. O. N. Okafor & Sons Ltd Vs Nigeria Housing Dev Society Ltd. & Anor (1972)

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Parties

APPELLANTS – S. O. N. OKAFOR & SONS LTD

RESPONDENTS

NIGERIA HOUSING DEVELOPMENT SOCIETY LIMITED

R. E. AGUNWAH

 LEWIS, JSC.

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 £11330 (Eleven Thousand Three Hundred and Thirty Pounds), of which the sum of £10 (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 £10 (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 £10 (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.