Antoine Rossek V. Diab Nasr (1978)

LawGlobal-Hub Lead Judgment Report

ALEXANDER, J.S.C.

The plaintiff/appellant claimed in an action before the High Court of Lagos State-

“1. a declaration that the power of attorney dated the 29th day of November, 1961 and registered as No. 45 at page 45 in Volume 1137 of the Register of Deeds kept in the office at Lagos has been validly revoked and is no longer binding as between the plaintiff and the defendant,

2. an account of all rents and profits received by the defendant as a result of or in consequence of or arising out of the execution of the said power of attorney, in respect of the premises Nos. 194 and 196 Yakubu Gowon Street, Lagos, (formerly Broad Street) Lagos and payment over of whatever is found due to the plaintiff.
3. an injunction restraining the defendant from acting or purporting to act under or to exercise any powers under the said power of attorney.

When the action came up for trial, learned counsel for the defendant/respondent indicated his intention to submit to judgment for an account and a consent order was consequently made by the court for the filing of an account by the defendant/respondent.

The first account to be filed was found by the court to be unacceptable. The court then granted forty days extension of time to enable the respondent to file a proper account “which must be verified by himself”. The respondent failed to do so. Consequently the appellant filed an application for an order-

“That the Defendant do pay to the Plaintiff the sum of N28,266.67 or such sum as this Honourable Court may deem just pending the determination of this suit and for such further or other order or orders as this Honourable Court may deem fit to make in the circumstance.”

Thereupon the respondent filed an application for an order –

“(a) for an extension of time within which the Defendant may file a statement of account in respect of the properties, the subject matter of this action; and

(b) that the statement of account filed in this Honourable Court on 5th June, 1974 and verified by an affidavit sworn to by Abudu Lamidi Afolabi Leigh Balogun, Legal Practitioner of 26, Moloney Street, Lagos, be deemed to have been duly filed.”

The appellant did not oppose this application and the order sought was “made as prayed”, and the extension of time granted so that the account filed in connection with the application “be deemed to have been filed within time”. Learned counsel for the appellant neither opposed nor objected to the application or the validity or propriety of the filing of the account which was, by order of the court, “deemed to have been duly filed”.

The appellant’s application for an order that the respondent do pay to him N28,266.67 or such as the court may deem just pending the determination of the suit next came up for hearing. At that stage both the appellant’s Statement of Claim and the respondent’s Statement of Defence had long been filed and issues had been joined between the parties. Nevertheless, it would appear that the appellant attempted to “short-cut” the well known procedure for taking of an account by filing an affidavit in support of his application which amounted to a repetition of his Statement of Claim. The learned Judge summarised the material portion of the appellant’s affidavit thus –

“According to the Plaintiff’s affidavit in support of the application the Defendant has collected N46,333.34 in respect of the properties in question between June, 1963, and October 1973. In addition to this, there is another sum of N10,500 due to be collected by the Official Receiver from one Botrous Abdallah. The Plaintiff reckons that N56, 533.34 should now be available for distribution between the defendant and himself and he seeks a payment of half of this which will be in the order of N28,266.67.

I ought to point out that the expenses of the Defendant, if any, are not taken account of in the reckoning of the Plaintiff.”

The learned Judge found that there was no basis for making the order sought by the appellant and decided instead to make an order that the respondent should give security with two sureties in the sum of N30,000.00. Learned counsel for the appellant filed and argued the following grounds of appeal –