Intermercosa (Nig.) Ltd. & Ors V. Anambra Motor Manufacturing & Anor (2004)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
The plaintiff/respondent in the appeal claimed against the 1st – 3rd appellants as the 1st – 3rd defendants and the 4th respondent as the 4th defendant jointly and severally as follows:
(i) A declaration that the transfer and or deposit by the plaintiff of 10 (Ten) million naira into the 1st defendant’s account No. 36000082U at the 4th defendant’s branch at Victoria Island, Lagos, is conditional on the issue of a bank draft of 10 (Ten) million naira in favour of the plaintiff.
(ii) A declaration that the 1st defendant’s said account No.37000082U is a blocked account and can only be operated with the approval of the plaintiff in respect of the deposit or transfer of the said 10 (Ten) million naira.
(iii) A declaration that it is wrongful and unlawful for the 4th defendant having regard to the circumstances of this case to permit the 1st – 3rd defendants or any of them to draw on the said account without the consent and approval of the plaintiff.
(iv.) As against the 1st, 3rd and 4th defendants jointly and severally a refund and/or replacement of any drawings or withdrawals on the amount or deposit of ten million naira with interest at 18 (Eighteen) per cent from the date of such drawings or withdrawals or in the alternative a refund or payment over the sum of 10 (Ten) million naira deposited with or transferred to the 1st defendant’s said account to the plaintiff with interest at 18 (Eighteen) percent until judgment and at the rate of 6 (six) percent until fully paid.
(v) An injunction restraining the 1st and 3rd defendants, their servants, agents and privies from making further drawings or withdrawals from the said account or on the said amount of ten million naira without the plaintiff’s consent and approval and as against the 4th defendant, their servants and agents from permitting such further drawings or withdrawals on the said account.
(vi) Any other or further relief or reliefs as this Honourable court may deem fit to make in the circumstances.
1.02 The parties filed and exchanged pleadings, the plaintiff’s statement of claim is set out at pages 3-8 of the record of appeal whilst the 1st – 3rd defendants’ statement of defence is as set out at pages 9-15 of the record of appeal. The 2nd respondent’s statement of defendant is set out at pages 16-17 of the record of appeal.
1.03 Based on the core defence of the 1st – 3rd defendants that the N10 million in dispute was commission due to them on account of consultancy services rendered to the plaintiff’s associated company in Germany, the plaintiff by motion dated 1989, applied to court for an order granting the plaintiff leave to deliver interrogatories to the 1st – 3rd defendants in a bid to unravel what the consultancy services (which were denied by the plaintiff) was all about. See pages 40-59 of the record of appeal.
1.04 By its ruling dated 24th May 1990, the lower court granted the plaintiff’s prayers (See pages 58-67 of the record of appeal).
1.05 Consequent on the answer to the interrogatories administered on the 1st – 3rd defendants, the plaintiff by another motion dated 8th March, 1991, sought an order of court directing the 1st – 3rd defendants to make discovery on oath of the documents in their possession relating to certain matters set out in their affidavit in answer to the interrogatories. (Please see pages 87 – 90 of the record of appeal). The trial court acceded to this request and ruling delivered on 27th March, 1992 (at pages 91 – 97 of the record of appeal) gave the following order;-
The 1st and 2nd defendants through the 3rd defendant shall make discovery on oath within 14 days of the following documents:
- Documents, contracts, papers and agreements and other documents showing the existence of a consultancy agreement between Giva Gmbh and the 1st defendant.
- Documents showing the basis of calculation of the commission payable to 1st defendant referred to in paragraph 6 of the said affidavit.
- Documents showing that Giva Gmbh lifted crude oil through services of the 1st or 3rd defendants as alleged in paragraphs 6 and 7 of the affidavit.
- The 3rd defendant’s passport (passports) valid for the period of 1985 – 1989.
1.06 The 1st – 3rd defendants failed to comply with this requirement of discovery within 14 days of the ruling as ordered by the court and it has been in continuous and continual disobedience of the order ever since.
1.07 Consequent on the disobedience of court order by the 1st – 3rd defendants, the plaintiff by application dated 14th January, 1993, brought a summons under Order 26 rule 6(3) of the High Court of Lagos State (Civil Procedure) Rules of an order striking out the 1st – 3rd defendants’ statement of defence and for such further order or other orders as the court may deem fit to make. (See pages 98 -99 of the record of appeal).
1.08 In a ruling delivered on 9th March, 1993, the learned Judge held as follows:
“It is hereby ordered that the joint defence of the 1st, 2nd and 3rd defendants dated 29/6/87 be struck out and judgment entered for the plaintiff in its claim unless within 7 days from date hereof the 1st defendant do comply with the order for discovery as contained in the items 1, 2, 3, of the court’s ruling dated 27/3/92”.
1.09 It is against this order that the 1st – 3rd defendants have now appealed to this court.
The learned Counsel for the appellants filed a brief of argument on their behalf and formulated two issues for determination as follows:
“1. Whether the learned Judge was right in entering judgment for the plaintiff/respondent after striking out the appellants’ joint defence.
- Whether having regard to the proceedings for interrogatories and discovery, the learned Judge was right in striking out the appellants’ joint defence?
The learned Counsel for the 1st respondent also filed a brief and formulated two issues for determination thus:
“(a) Whether the lower court having regard to the proceedings for interrogatories and discovery exercised its discretion judicially and judiciously when it struck out the statement of defence of the 1st – 3rd defendants/ appellants.
(b) Whether in all the circumstances of this case, the plaintiff/respondent is entitled to judgment.”
The learned Counsel for the 2nd respondent also filed a brief and adopted the issues formulated by the appellants.
On issue one, the learned Counsel for the appellants submitted that the trial Judge exceeded the power given to him by entering judgment for the plaintiff/respondent as per its claims when that was not a purport of Order 27 rule 20 of the High Court of Lagos State (Civil Procedure) Rules, 1972, which is applicable in this appeal.
He also submitted that the prayer for judgment was not sought by the 1st respondent in the lower court. He relied on the case of Okoya v. Santilli (1990) 2 NWLR (Pt.131) 172 to show that an applicant is bound by his prayer in his motion.
In reply to this the learned counsel for the 1st respondent under issue ‘B’ submitted that the lower court rightly entered judgment for the 1st respondent based on the authority of Order 27 rule 20 of High Court of Lagos State (Civil Procedure) Rules. He said that generally a court of justice should not give a party what he has not claimed, but from the facts of this case the order for judgment was auxiliary to the relief of the 1st respondent to strike out the appellants’ defence and the High Court has power under section 14 of the High Court Law of the Laws of Lagos State, 1973 to make the order giving judgment in favour of the 1st respondent.
He relied on the cases of Erisi v. Idika (1987) 4 NWLR (Pt. 66) 503; Ogbahon v. Registered Trustee CCC (2002) 1 NWLR (Pt.749) 675, and particularly, Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266.
The learned Counsel for the 2nd respondent also submitted that the trial court had inherent powers to make the order giving judgment in favour of the 1st respondent as it did. He also relied on the case of Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 248) 266.
Order 27 rule 20 of the High Court of Lagos State (Civil Procedure) Rules, 1972 reads;
“If any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not been defended, and the party interrogating may apply to the court or Judge in chambers for an order to that effect and an order may be made accordingly.”
In Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266 at 297 (D-E), the Supreme Court held as follows:
“Learned Counsel to the 1st set of respondents submitted and I agree entirely with him that the High Court has inherent powers to make orders even if not sought where such orders are “incidental” to the prayer sought.
This follows up on the construction of the expression “and for such order or orders as this Honourable Court may deem fit to make … Thus, a thing is incidental if it follows naturally, appertains to or as a matter of course from the primary matter or depends upon the principal matter. For the order made to be incidental to the order sought, such order made should be dependent on the order sought as its primary or principal.”
From the fact of this case since the appellants’ failed to comply with the order of discovery made by the trial court, the court was right in striking out their defence. With the collapse of the appellants’ defence, the 1st respondent’s liquidated claim stood uncontested.
The trial court therefore had inherent power to enter judgment under section 14 of the High Court Law, Cap. 52 of the Laws of Lagos State, 1973, which reads:
“The High Court in the exercise of the jurisdiction vested in it by this law shall, in every cause or matter, grant either absolutely or on such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the case or matter, so that, as far as possible all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided”.
On the second issue, the learned Counsel for the appellants submitted that the trial court was wrong in saying that it was too late in the day for the appellants to say that they no longer had the documents sought to be discovered, when the order was made striking out their defence. He further submitted that whether it was at the discovery stage or at the striking out stage for failure to comply with the order of discovery, the appellant had a constitutional right to be heard as to why compliance had not been effected.
He said that the learned trial Judge did not consider the reason for non-compliance and this was a great error which made the court to strike out the appellant’s defence.
In reply to this, the learned Counsel for the 1st respondent submitted that the lower court properly exercised its discretion in striking out the appellants’ defence under Order 27 rule 20 of the High Court of Lagos State (Civil Procedure) Rules, 1972.
On issue 2, the learned Counsel for the 2nd respondent submitted that the documents sought to be discovered were in possession and power of the 1st defendant at the lower court. The appellants did not at any time file an affidavit to show that they were not in their possession. It was when they failed flagrantly to obey the order of the court to produce the documents that in resisting the application to strike out their defence that for the first time they swore that the documents could no longer be located.
At page 106 of the record of appeal, the trial Judge had this to say on the appellants’ non-compliance with the order of discovery:
“The issue that arises for determination herein is whether the defendants’ excuse extends to cover the terms of the court’s order of the 27/3/92. The order the plaintiff applied for and obtained was for discoverable documents which are to have been in the possession or power of the 1st defendant. Thus, at the time of the said order, the court had found it undisputed that the discoverable documents were then in the possession or power of the 1st defendant or had been in its possession and power and ought to be made known to the plaintiff. In the event, the discoverable documents were then not available or had not been available, the defendants ought to have disclosed this in their counter affidavit to the motion upon which the order was sought. At that stage, the court upon the materials placed before it would have resolved whether or not to exercise its discretion to make the order for disclosure on the particular documents.
In my judgment, the excuse which the defendants are now putting up after the order had gone forth, (the court having found undisputed that the discoverable documents were in the 1st defendant’s possession or power or had been in its possession or power to be made known to plaintiff) does not avail them. I find as a fact that the terms of that order. The question whether or not, it is true that the 1st defendant had the documents but cannot now lay hand on them is not relevant at this stage for examination. The point which both learned Counsel canvassed as to who has the burden of discharging whether or not the excuse in paragraph 2 and 3 of the counter-affidavit is false does not therefore arise for determination”.
It is trite law that an appellate court will not interfere with the discretion of a lower court which was exercised judicially and judiciously once it is shown that the court did not exercise its discretion based on extraneous matters or omit to take relevant issues into consideration. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 and Nwabueze v. Nwosu (1988) 4 NWLR (Pt.88) 257.
The learned trial Judge’s reasons for striking out the appellants’ defence are sound and cannot be faulted by this court. I have no cause whatsoever to interfere with the discretion of the lower court.
In the result, I find this appeal totally lacking in merit and I hereby dismiss it with costs of N3,500.00 in favour of the 1st respondent and N3,500.00 in favour of the 2nd respondent.
Other Citations: (2004)LCN/1612(CA)
