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:

1. Documents, contracts, papers and agreements and other documents showing the existence of a consultancy agreement between Giva Gmbh and the 1st defendant.
2. Documents showing the basis of calculation of the commission payable to 1st defendant referred to in paragraph 6 of the said affidavit.
3. 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.
4. 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.