CASE SUMMARY OF:
Jackie Phillips v. Arco Ltd (Pharmaco Biological Institute) (1971) - SC
Arco Ltd (Pharmaco Biological Institute)
LEAD JUDGEMENT DELIVERED BY:
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
- Mr. Cole;
* FOR THE RESPONDENT
- Mr. Coker
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
The plaintiff's (now Appellant) writ before the trial court 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."
On the 31st of January, 1969, Caxton-Martins, J. gave judgment dismissing the plaintiff's claim and finding inter alia - "I am satisfied that the plaintiff was untruthful when he said he returned the properties to the defendants in compliance with exhibit 3. I believe the evidence of both 3rd and 4th defendants' witnesses. I find as a fact that the plaintiff retained the keys and did not deliver the defendants' properties to them until he, the plaintiff, arranged the delivery to the Official Receiver late in 1966".
ARGUMENTS OF PARTIES
* FOR THE APPELLANT
*FOR THE RESPONDENT
HOLDING & RATIO DECIDENDI
[APPEAL: APPEAL DISMISSED]
Here to our mind exhibit 3, and in particular the last paragraph upon which Mr. Cole relied, is in no way comparable with the terms of the preamble coupled with article contained in the later agreement held to be a novation in the Spetsai Patriot (supra). As stated in exhibit 3, to our mind, what was agreed was only that if the terms of the document were complied with then the mortgage deed would be reconveyed to the plaintiff. It was not envisaged that rights under the mortgage deed would not be exercised because the agreement exhibit 3 superseded the mortgage deed. It was contemplated that if the conditions were fulfilled then the mortgage deed (presumably in fact the mortgage property) would be reconveyed. The only inference to be drawn from this construction of exhibit 3 must be that if the conditions were not fulfilled the mortgage deed remained in existence and the defendants were not debarred from exercising their rights under it. In other words, exhibit 3 was not, in our view, a novation but a collateral agreement as found by the learned trial Judge.
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Although a contract may have several terms, it must be the intention of the parties that determines whether it is to be treated as an entire contract or as a separable one. - LEWIS, J.S.C. Jackie v. Arco (1971)
The end of this brief.
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