Ejikeme V. Okonkwo & Anors (1994)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, JSC. 

Sometime in 1966, Lawrence Okonkwo and Samuel Okonkwo (both now deceased) borrowed from Edwin O.C. Ejikeme the sum of £3,700.00 (now N7,400.00) with which they developed a property at 3 Iweka Road, Onitsha. The parties entered into agreement under seal which agreement was registered in the Lands Registry in the office at Enugu. Part of the recitals of the recitals of the agreement reads as follows:

“2. The Borrowers are in course of erecting on the said property dwelling house and has requested the mortagee for the purpose of completing such dwelling house to lend to them the sum of £3,700 (N7,400.00).

‘And whereas the mortgagee has agreed with the borrowers to lend to them the sum of £3,700 out of the money belonging to his family upon having the repayment therefore as hereinafter mentioned and secured in a manner hereinafter appearing.’”

The agreement demised unto the lender

“All that plot of land with the dwelling house thereon situate at and known as and called No. 3 Iweka Road ,Onitsha to hold the same unto the mortgagee for the term of 35 years from the first day of July, 1966.”

Paragraph 6 of the agreement or deed provides:

“6. Provided always that if the said sum of £3,700.00 with compound interest thereon as aforesaid shall be paid to the mortgagee by way of half the rents collected from the secured property monthly for a period of 35 years and in accordance with the foregoing covenant, the said hereditaments comprised in this security shall at the request and cost of the Borrowers and Mortgagee be reassigned to him at the end of 35 years from the date of this mortgage.”

The Lender by virtue of the agreement was being paid by the Borrowers half the rent they were collecting from tenants in the house. The borrowers died during the Civil War and Veronica Okonkwo – wife and son respectively of Lawrence Okonkwo took out letters of administration with one other person Elizer Okonkwo in respect of the estate of Lawrence Okonkwo. In 1982 by a letter dated 19th May and addressed to Ejikeme, the Lender, Veronica gave notice of her intention.

“to pay off all the outstanding balance of the loan plus interest due thereon as at 20th June 1982”

Ejikeme replied through his solicitor that he would insist on his rights under the agreement, that is, he would continue to collect 50% of the rent accruing from the property for 35 years as stipulated in the agreement. He refused to accept the offer made by Veronica Okonkwo. Thereupon, Veronica refused to share the rent with Ejikeme who then instituted the action leading to this appeal claiming as per paragraph 10 of the State of Claim against Veronica and Ndubisi as hereunder:

1. A declaration that the plaintiff is entitled to fifty percent of all the rents collected from the house known as and called No. 3 Iweka Road Onitsha for a period of thirty-five years from 1st day of July, 1966.
2. A perpetual injunction restraining the defendants either by themselves, their servant or agents from collecting rents on the said house to the exclusion of the plaintiff.
3. An account of all the money collected by the defendants in respect of the house from the 19th day of December 1983 up to date of the judgement.”

Pleadings have been filed and exchanged the defendants in their Statement of Defence and counter-claim claimed as follows:

“(a) A declaration that the purported mortgage dated the 26th day of May 1966 made between the plaintiff and the late Mr. Lawrence Okonkwo, Samuel Okonkwo and registered as No. 27 at page 27 in volume 448 of the Lands Registry Enugu is void.

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