LIABILITY OF A JOINT SURETY AND WHERE OTHERS DID NOT EXECUTE DEED

• Date: 06 February 2019

(1) "The law as to the liability of a surety in circumstances similar to those of the case in hand is well settled. Thus, in Leaf v. Gibbs (1830) 4 C & P 466 (N.P.), it was held that when a person signs a promissory note on a representation that others are to join and one afterwards refuses to sign, the payees cannot recover in an action on the note against the person who signed it, unless the jury are satisfied that such person, knowing the facts and being aware of his rights, had consented to waive his objection. Again, in Evans v. Brembridge (1855) 69 E.R. 741, one of two intended sureties executed a deed of covenant for the payment of monies advanced to the principal debtor, on the understanding that the money would not be advanced until the deed was executed by the other surety. The deed was never executed by the other surety, and no notice of his failure to execute it was given by the creditor to the executing surety until after the principal debtor had defaulted. It was held in an action, instituted by the creditor against the surety who executed the deed that the executing trustee was entitled to be discharged in equity from every part of the debt and to have the deed delivered up to be cancelled." - Per Fatai-Williams, J.S.C., in Arab Bank (Nigeria) Ltd. v. Alhaji Aminu Dantata Suit No. S.C. 337/1975; (1977) 11 N.S.C.C. 403 at 409.

(2) "Thirdly, In the Goods of Cowadin (1901) 18 T.L.R. 220, one surety to an administration bond executed the bond on being assured that the other person named in it as co-surety would execute it. The co -surety refused to do so. Consequently, the name of another surety was inserted in the bond and this person executed it. The first surety did not assent to the alteration. In an action brought to enforce the bond against the first surety, it was held that the bond was void and must be cancelled. The following observation, made by Barnes, J., in his judgment in the case, is particularly apposite. In Underhill v. Horwood (10 Ves., at p. 225) the Lord Chancellor said: "Where a man executes a bond, meaning that it should be the joint bond of himself and another, and not his several bond, it would not be his several bond. But the cases go further. In such a case, however, unless there is something special, the man, who had become so severally bound, has a right to have that bond delivered up; for his intention was not to become a mere several obligor, but to be a joint and several obligor, and the rights are...