Michael Olatunji Famuyide Vs R.c. Irving And Co. Ltd. (1992)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C

This appeal is against an interlocutory decision of the High Court of Lagos State ordering the Appellant as defendant to answer the interrogatories served on him by the Plaintiff. The Court of Appeal, Lagos Division affirmed the order of the High Court.

The facts of the case are quite simple and are not disputed. The Respondent, who is the Plaintiff, is a limited liability company. It carries on business in this country at 4 Keffi Street, Lagos. as Project Development and Finance Consultants, The Appellant who is the Defendant requested the Respondent by letter dated 16th November, 1980, to arrange either a mortgage or a contractor finance for the development of his land situate and lying at 136 Lewis Street, Lagos, into an office block.

By an agreement in writing dated 25th May, 1981, made between the parties, Appellant appointed Respondent as his sole and exclusive project co-ordinator in respect of the development of the said property. Pursuant to this agreement, Respondent held negotiations with Messrs. Coopers and Lybrand who were interested in the development of the property. Respondent obtained quotations for the development of the property and prepared a viability report in respect thereof. The viability report was sent to a number of Respondent’s clients including Messrs. Coopers and Lybrand on the 10th February, 1981. Messrs. Coopers and Lybrand by letter dated 23rd February. 1981 made certain proposals to the Respondent and confirmed their interest in the development of the property. Respondent pleaded that Messrs. Coopers and Lybrand, knew at all material times that the said property belonged to the Appellant. Respondent subsequent to the Agreement of the 25th May, 1981 held negotiations with Messrs. Coopers and Lybrand which resulted in a revised basis for the development of the property and informed Appellant accordingly in a letter dated 21st May, 1981.

By a letter dated June 5, 1981. Messrs. Coopers and Lybrand informed Respondent that they had accepted a more attractive proposal for the development of the property. Respondent came to know in August, 1981 that the offer was through Messrs. Knight. Frank and Rutley and that Appellant had all along been conducting negotiations with Messrs. Coopers and Lybrand through Messrs. Knight, Frank and Rutley, notwithstanding the Agreement of 25th May, 1981.

In a letter dated 7th August, 1981, the Respondent wrote to the Appellant to confirm the Agreement of 25th May, 1981. Respondent claims to have done much work and spent much time with respect to the said Agreement. It is claimed that Appellant is in breach of the said Agreement and intends to continue to breach it unless restrained by court. Respondent will suffer loss or damage of the commissions and fees which the Respondent would otherwise have earned.

The particulars of Damage claimed is as follows:-

Fees in accordance with the 4th Schedule of the said Agreement of 25th May, 1981.

For initial inspection of site plans and

preparation of preliminary feasibility and

viability report at 1% = N30,000.00

Procuration fee at 2% = N60,000.00

For attendance during construction

and certificate of work progress

at 2% = N60,000.00

Commission in accordance with clause

5(v) of the said Agreement

Letting fees at 5% of N400.000

p.a. rent for 7 years = N140.000.00

In his statement of Defence, Appellant admitted that he signed the Agreement but that it was illegal, unenforceable, null and void. It was pleaded that initially Plaintiff showed lack of interest in the development of the property. The acceptance of the project was made conditional on the Defendant presenting an approved building plan. Defendant admitted in his pleading that as a consequence he consulted other estate developers to arrange for the development of the property. Even after Defendant obtained an approved building plan, the Plaintiff was not enthusiastic for the project, having classified the project as in a second class area which is not attractive to finance institutions. Defendant was accordingly advised by a Mr. Warner of the Plaintiffs not to rely solely on the plaintiffs for the development of the project.

Defendant denied that Plaintiff did anything or incurred any expenditure in furtherance of the project. Anything so done was unauthorised; and without the knowledge or consent of the Defendant.

Defendant denied that Plaintiff disclosed to him the names of any financiers interested in the project. He averred that he was entitled to look for suitable Financiers or property developers. At paragraph 20 of this statement of defence, the Defendant stated as follows:-

“The Defendant denies the allegation contained in paragraph 18 that the estimated cost of the development is N3 million and avers that the cost has been greatly exaggerated by the Plaintiff in order to enhance the Plaintiff s purported claim which is based on the percentage of the estimated cost of the development.”

Again at paragraph 24 it was averred,

“The defendant will, at the trial, rely on all building plans, letters, agreements, leases, receipts and other documents connected with the case.”

On service of tile statement of defence, plaintiff issued out a notice under Order 26 r.6(3); 27 rr.1, 2 and 3 of the High Court of Lagos (Civil Procedure) Rules 1972, seeking an order to serve on the Defendant the following questions to answer:-

1. The actual and/or estimated cost of construction of the development on the land situate at 136, Lewis Street, Lagos, with copies of the contracts relevant thereto.
2. The fees payable to all professionals in respect of the said development with copies of the contracts relevant thereto.
3. The source of financing the said development, the amount of finance procured and through whom it was procured.
4. The space available for letting in the said development.”

Learned Counsel to the Plaintiff. Dr. Nylander. S.A.N., moving his application submitted that Defendant had in his statement of defence denied the estimated cost of the development. He also submitted that Defendant averred that he would rely on the plans, letters, agreements, leases, receipts and other documents connected with the case. It was submitted that the fees are relevant, and so the documents.

Mr. Oyebolu, for the Defendant opposed the application for interrogatories. It was submitted that the procedure was wrong and that the application should have been made by summons. Learned counsel submitted that the application did not frame any questions. The purpose of interrogatories is to discover facts where the issues are not well defined. The issues in this case are well defined. It is not for the Defendant to tell Plaintiff what they arc expected to prove. The questions raised relate to evidence which the Defendant is not obliged to supply. It was submitted that all the answers in the question are contained in the documents which the Plaintiff have already. The questions, he argued, are merely fishing and are impossible to answer. It was finally submitted that the interrogatories relate to damages which are not generally allowed.

The learned trial Judge granted the application. In coming to his conclusion in the exercise of his discretion, the learned Judge relied on the averments of the Defendant in paragraphs 14, 20 and 24 of the Statement of defence to these averments Defendant admitted dealing with other financiers other than the Plaintiff, lie contended that in the circumstances he was entitled to do so. The cost of the development which Plaintiff estimated at N3 million was denied by the Defendant as grossly exaggerated. Defendant averred that with respect to the cost of the project he would rely on all relevant building plans, letters, agreements, leases, receipts and other documents.

The learned Judge held that all these are matters which are material to enable the plaintiff maintain his own case or destroy the defendant’s case. He then concluded as follows:-

“It seems to me after considering the case as put up by the parties in their pleadings and after studying the four interrogatories very carefully that the interrogatories have been designed to ask the defendant to show the acts on which he relies as justifying its dispensing with tilt: services of the plaintiff and in employing other financiers and developers. I am of the firm view that this is one of those cases in which it is not oppressive or impossible or irrelevant or fishing or might lead to the admission of evidence to be adduced at the trial or might lead to increase in costs if the defendant is ordered to answer all the interrogatories as filed by the Plaintiff. I see in this application a lawful exercise of the Plaintiffs right to ascertain what it has to meet at the trial.”

Defendant appealed to the Court of Appeal. Although briefs were filed by learned Counsel, no issues for determination in the appeal were formulated by either counsel. The Court of Appeal thereupon formulated the issue from the grounds of appeal filed by the Appellant. The issue so formulated and on which the appeal was decided is as follows:-

“Did the learned trial Judge exercise his discretion judicially and judiciously in granting the Respondent leave to file and serve on the Appellant the interrogatories formulated”

Learned counsel to the appellant did not challenge the formulation of the issue for determination. He must be regarded as having accepted it.

The issue was formulated from the five grounds of appeal filed challenging the judgment of the learned trial Judge. The grounds of appeal ranged from the contention that the interrogatories were not permissible in law since they did not refer to the facts in issue, that they are too wide and vague, to the contention that the application itself was defective in form.

After reading the briefs of counsel and listening to oral arguments in expatiation, the Court of Appeal examined the purport of the claim and the pleadings of the parties, and the judgment of the trial Judge and came to the conclusion that the learned trial Judge was right in granting leave to the Respondents to serve interrogatories on the Appellants to be answered as framed. The Appeal of the Appellant was dismissed.

Appellant has appealed to this Court against the judgment of the Court below. The grounds of appeal relied upon are not substantially different from the grounds of error relied upon in the Court below. I shall reproduce them to avoid any ambiguity. They are as follows:-

GROUNDS OF APPEAL

“(a) The learned Justices of the Court of Appeal erred in law in granting leave to the plaintiff/respondent to serve interrogatories on the Defendant/Appellant when the said interrogatories are not permissible in law in that:

(i) the interrogatories relate to evidence and not facts:

(ii) the interrogatories relate to the issue of damages only and not to the issue of liability;

(iii) the interrogatories call for the production of documents;

(iv) the interrogatories relate to the contents of documents rather than to their existence.

(b) The learned Justices of the Court of Appeal erred in law when they held that the interrogatories were neither vague nor fishing.

Particulars of error

(i) the interrogatories were each capable of more than one meaning;

(ii) there was no indication of the extent of the details required in the answers to the interrogatories;

(iii) the interrogatories were directed principally al the defendant’s relationship with third parties which had no direct bearing on the plaintiff’s case.

(c) The learned Justices of the Court of Appeal erred in law when they failed to make proper and definite findings on the issues in dispute between the parties in the appeal.

Particulars of error

(i) Out of five grounds of appeal, the Court of Appeal made a definite finding on only one of them, namely, that the interrogatories are neither vague nor fishing, and even then did not give any reason for so holding.

(ii) Even if the finding of the Court of Appeal was right, (i.e. that the interrogatories were not vague or fishing) that was not sufficient to found a decision for the respondent in view of other grounds of appeal.

(d) The learned Justices of the Court of Appeal misdirected themselves in law when they stated the applicable principle governing the grant of leave to serve interrogatories thus:-

“Interrogatories must be answered if the answers to them can disclose anything which can be fairly said to be material to enable the plaintiff either to maintain his own case or to destroy the case of the defendant”

Particulars of misdirection

(i) The above statement, quoted from Hennessy v. Wright 24 QBD 445, was taken out of con and misapplied.

(ii) The correct principle, which is slated in Halsbury’s Laws of England, 4th Ed. Vol. 13, at paragraph 104, is that:

“On the hearing of the application for leave to serve interrogatories, the Court will give leave as to such only of the interrogatories as it considers necessary either for disposing fairly of the cause or matter or for saving costs ….

The following four issues for determination were formulated by learned Counsel to the Appellant.

(a) are the interrogatories within the class of interrogatories permitted in law

(b) if so, are the interrogatories vague or fishing

(c) did the learned Justices of the Court of Appeal act under a wrong principle of law in reaching their decision

(d) did the Court of Appeal properly evaluate the arguments of both parties before the Court, as presented in their respective briefs and in oral argument, in reaching its decision

I do not think there is any need for the proliferation of the issues as has been done by Appellant. Obviously (a) (b) as formulated could be argued under (a) as interrogatories which are fishing or vague are not permitted in law. Similarly (c) could be argued under (d) since in reaching the correct decision the right principles must be followed. Only two issues need be formulated, that is. (a) and (d). Learned counsel to the Respondents did not adopt those issues for determination. In his submission, which I consider correct, the issue for determination should be the same as was formulated in the Court of Appeal. The grounds of appeal being substantially the same, the issues for determination must necessarily be the same.

The contention of learned counsel to the Appellants is that the interrogatories are both vague and fishing and that such interrogatories are not permitted in law. It was also submitted that the Court of Appeal decided the application to serve the interrogatories on wrong principles. It was finally submitted that the Court of Appeal considered only one of the five grounds of appeal before it. It did not say whether it accepted or rejected the submissions of either counsel on any of the issues in controversy. Accordingly, relying on Ozibe v. Aigbe (1977) 7 SC. 1 at p.11 and Oladehin v. Continental ile Mills (1978) 2 SC.23, it was submitted that this is a failure to properly evaluate the material before the Court which will render the findings liable to be set aside ex debitato justiciae.

In his brief of argument, learned counsel to the Respondent submitted that the interrogatories were neither vague nor fishing. They were drafted to deal with the specific paragraphs in the pleadings of both parties. The interrogatories are relevant to the dispute between the parties. Learned counsel referred to the cost of construction of the project, and the source of financing the project. These are relevant to Respondent’s case in view of the claim before the Court. He referred to paragraph 18 of the statement of claim where Respondent alleged that the estimated cost of the project was N3 million and paragraph 20 of the statement of defence which denied the claim. Reference was also made to paragraphs 8, 13, 15 and 16 of the statement of claim, in respect of which issues were joined in paragraphs 9, 14, 16, 21 and 22 of the statement of defence.

Learned counsel finally submitted, relying on dicta from the judgment that the court proceeded on the correct principles of law relating to the grant of interrogatories.

I have summarised the arguments of Counsel in this case. The contentions are for the grant or otherwise of the interrogatories served on the Defendant. I have already reproduced the issues which led to the formation and serving of the interrogatories. I have also set out the four interrogatories served on the Defendant and the reliefs sought by the Plaintiff in this action.

Concisely stated the facts relating to the estimated cost of the development to which the Plaintiffs is seeking answers from the Defendant are contained in the averments in paragraph 18 of the statement of claim which are positively denied in paragraph 20 of the statement of defence. There is also the averment in paragraph 24 of the statement of defence where the Defendant averred that he would at the trial.”…….. rely on all building plans, letters, agreements, leases, receipts and other documents connected with the case.”

These averments are by implication raising the inference that Defendant knows the true cost of the development. and not the N3 million claimed by the Plaintiff. Again he was in possession of the building plans, letters, agreements, leases, receipts and other documents connected with the case to facilitate the parties effort at arriving at the correct estimate of the cost.

The principal issue before the learned trial Judge and the Court of Appeal therefore is whether the four interrogatories served on the Defendant relate to any matter in the cause or matter before the Court. if so they are to be considered necessary either for disposing of fairly of the cause or matter, or for saving costs in the litigation between the parties.

Order 27 rule 2 of the High Court of Lagos (Civil Procedure) Rules 1972 provides as follows:-

“……… leave shall be given as to such only of the interrogatories as shall he considered necessary either for disposing fairly of the cause or matter or for saving costs.”

This rule has its origin in the English RSC Order 26 Rule 1(3). The principles governing the application of this rule have been clearly enunciated in several decided cases in Courts in England. These cases have constituted guides to our own Courts where confronted with similar situations. After the pleadings of the parties it is generally allowed to put questions to the opponent for the purpose of extracting information as to the facts material to the questions between them which the party interrogating has to prove on any issue raised between them. or for the purpose of securing admissions as to those facts to avoid delay and save costs. It is also allowed to enable the opponent to find out whether the particular averment in the pleadings of the party interrogating who has the burden of proof are true or untrue, and also to ascertain the case he has to meet. In essence, the interrogatory is aimed at ascertaining the real issue, so as to prevent surprise. It also enables the person interrogating to reveal the case of the person interrogated, or to elicit facts in support of the case of the person interrogating.

These are the considerations why in cases of doubt raised in the averments in the pleadings, and where there is likelihood of conflict in the evidence of the parties, it has always been desirable and ideal for a party to ascertain before the hearing, and after close of pleadings, the actual point in conflict.

It is therefore accepted that one of the objects of interrogatories is to enable a party to obtain an admission from the other party and so to relieve himself from the necessity of adducing evidence – See Attorney-General v. Gaskill (1882) 20 Ch. D. 519.

It was Mr. Oyewole’s submission before us that the interrogatories served are not relevant to the issues before the court, that they are both vague and fishing and ought to have been rejected.

I do not think learned counsel to the Appellant enjoys any support on the well settled principles for the submissions. He has relied on Marriott v. Chamberlain (1886) 17 QB.154 and Bidder v. Bridges (1885) 29 Ch.D. 29. 39 for the submission that interrogatories must be limited to the ascertainment of facts, but not the evidence of such facts.

Learned Counsel referred to the passage in the learned trial Judge’s judgment where he held that:

“the interrogatories have been designed to ask the defendant to show the acts on which he relies as justifying his dispensing with the services of the plaintiff and in employing other financiers and developers …”

He submitted that these are matters relating to the case of the Defendant and not the Plaintiff. It was argued that asking for copies of contract documents relevant to the construction of the development as the interrogatory has done, is asking for copies of documents by way of interrogatories, which is not permissible. Finally, it was submitted relying on Fennessy v. Clark (1888) 37 Ch.D. 184 that the answers to the interrogatories will only go towards the determination of the quantum of damages and therefore the court has a discretion whether to refuse it.

A careful examination of the pleadings in this case discloses that the claim before the court is that the issue between the parties is whether Appellant is responsible for the breach of the contract dated 25th May, 1981 between Appellant and the Respondent. The contract between the parties is for the appointment of the Respondent as the sole and exclusive project co-ordinator for the development of 136 Lewis Street, Lagos on behalf of the Appellant. Respondent has alleged a loss in the payment of commissions due to him as a result of the breach based on the cost of the project. Appellant, save admitting signing the said agreement is denying the existence of a contract between the parties – (See para. 9 of the statement of defence). The Respondent’s estimated cost of the development of the project is also denied by the Appellant, who pleaded that he will rely on all relevant building plans, letters, leases, receipts and other documents connected with the case.

I do not think it can be seriously contested, although Appellant is already doing so in this case, that questions 1 and 2 in the interrogatories served relate to the claim of the Respondent before the Court and is therefore relevant to the case of the Respondent. Respondent is expected to prove the actual or estimated cost of the project, breach of which is the subject matter of the action. The loss to the Respondent has been computed on the cost of the project which is made up in addition to all other costs, of the fees payable to all professionals involved in the execution of the project. Thus discovery from the defendant of the facts in support of the case of the Plaintiff ought to be allowed, as they have always been allowed in earlier similar cases, – See Bidder v. Bridges (1885) 29 Ch.D. 29. Discovery of the facts from the defendant, if such facts from the defendant, support the Plaintiff’s case, will not be refused merely because those facts relate to the case of the defendant. What Plaintiff is not entitled to do is to ask for discovery of the evidence which the defendant proposes to adduce at the trial. See Eade v. Jacobs 3 Ex.D.335. This is because to allow such interrogatories is to compel the defendant to disclose how he made out his own case. In Commissioners of Sewers of the City of London v. Glasse, Law Rep. 15 Eq. 302, Lord Romilly expressed the principle thus:

“The party interrogating (whether plaintiff or defendant) was always entitled to discovery of everything which made out his own case, or which showed that he was in the right, but not to discovery of matters which supported his opponent’s case or showed that his opponent was in the right.”

The interrogatories formulated in the instant case do not relate to the evidence relied by the defendant in support of his own case. They relate to the facts relied upon by the Plaintiff to prove his case. Indeed Plaintiff was by the interrogatories getting defendant to admit facts relating to the cost of the project which were at the stage of the pleadings in dispute.

Mr. Oyewole’s objection to the interrogatory on the cost of the construction and fees payable to all the professionals in respect of the project is that they are matters relating to the case of the defendant and not the case of the Plaintiff. The other objection is that it would lead to discovery of documents, and contents thereof and not of facts, which should not be permitted.

The general principle in Order 27 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, is that interrogatories shall be considered it necessary either for disposing fairly of the cause or matter or for saving costs. It is therefore within the purview of the rule to serve interrogatories for the production of documents, not its contents, where the pleadings of the defendant has relied on any documents The Plaintiff is entitled to show that the defendant has no such documents as was pleaded, or that such documents if they existed support Plaintiff’s case and not the defendant’s, – See Eade v. Jacobs 3 EX.D.335,

In this case the questions relate to the case of both parties and are relevant to matters in dispute. None of the four questions is directed at establishing the quantum of damages, as claimed and argued before us by Mr. Oyewole.

Mr. Oyewole has criticized the judgment of the Court of Appeal on the ground that it was based on wrong principles and that only six lines of the judgment related to the decision of the Court. It was also submitted that only one of the five grounds of appeal argued was considered by the Court. The Court did not consider the four grounds whether or not they were rejected. Mr. Oyewole therefore submitted that the Court below having failed to make definite findings on these four grounds of appeal, this court should ex debito justitiae set the decision aside. He relied on Ozigbe v. Aigbe (1977) 7 SC. 1 at p, 11; Oladehin v. Continental ile Mills (1978) 2 SC. 23,

The last submission could be summarily dismissed without any serious argument. I have observed earlier in this judgment that learned counsel in the court below did not formulate issues for determination in that court. The court accordingly formulated the only issue it relied upon for its decision based on the grounds of appeal filed. Having formulated issues, based on the grounds of appeal filed, the court does not revert to the grounds of appeal from which the issue was formulated. Learned counsel was therefore in error in assuming that there were any grounds of appeal, extant, requiring consideration.

It is unfair and a misapprehension of the judgment of the court below to contend that the actual decision of the Court of Appeal in this case consists of six lines which read (see p. 58, lines 1-7).

“Applying the above principles underlining interrogatories to the facts and circumstances of this case I am of the firm view that the learned trial Judge was right in giving leave for the interrogatories to be answered as framed.

The interrogatories are neither vague nor fishing as contended by the Appellant”

This conclusion was reached after the judgment had summarised the facts of the case, and the decision of the learned trial Judge. The judgment also carefully stated characteristics of the nature of interrogatories and the law applicable. The principles and case law applicable were also carefully discussed before reaching the conclusion stated above.

I have already pointed out that the interrogatories aim at supporting the Plaintiff’s case by making the defendant to admit or bring out facts which Plaintiff relies for his case. The facts will enable Plaintiff to establish his case and destroy the case of the Defendant – See Plymouth Mutual Cooperative and Industrial Society Ltd. v. Traders Publishing Association (1906) 1 KB.403.

This is precisely what the interrogatories set out to do. Plaintiff was not seeking from the defendant the evidence which the Defendant proposes to adduce in the case. It is obvious from the questions that Plaintiff is not seeking to know from the Defendant:

“by what evidence are you going to prove the amount involved ……………..or “by whom are you going to prove the cost of the development.”

The learned Judge was on the above considerations, right in granting the Plaintiff’s application by questions to ascertain what he has to meet at the trial.

The Court below was therefore right in affirming the judgment of the learned Judge.

The appeal fails and is accordingly dismissed. Appellant shall pay N1,000 as costs to the Respondent.

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Other Citation: (1992) LCN/2520(SC)