Prince S. B. Godwin V. H. A. Paris & Anor (1943)

LawGlobal Hub Judgment Report – West African Court of Appeal

Guarantee—Surety—Variation of conditions of advance—condition precedent to surety’s liability—variation detrimental to surety’s interests.

Facts

Appellants were executors of one Pratt, who was surety for an advance of money made by the plaintiff-respondent. The money was agreed to be advanced in consideration of lite execution of (1) a personal bond by the principal debtor and the surety and (2) a Mortgage deed of certain real property by the wife of the principal debtor. By the law in force in Sierra Leone, a Mortgage deed by a married woman in order to be valid had to be acknowledged by her before a Judge.

The wife refused to acknowledge the deed, but the lender, with knowledge of this refusal and its legal effect, and without the consent of the surety, paid over the money to the principal debtor. The trial Judge entered judgment for the lender against the surety.

Held

That the payment over of the money without the valid execution of the mortgage deed, which execution was a condition precedent to the surety’s liability, was a variation seriously detrimental to the interests of the surety, whose liability on the bond, in consequence, never arose at all.

Appeal allowed.