Antoine Rossek V. Diab Nasr (1978) LLJR-SC

Antoine Rossek V. Diab Nasr (1978)

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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,

  1. 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.
  2. 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 –

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“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 –


(1) The learned trial Judge erred in law in holding that it would be unreasonable to make the order sought

(i) when the provisions of the law provided for the making of an order for judgment in default where the Defendant failed to obey the court’s interlocutory order;

(ii) The Defendant in effect refused to comply with the court order to file a proper account.

(2) The learned trial Judge erred in law in holding that he would be prejudicing the issue before him if he ordered the payment of an interim sum in default of the Defendant filing the Account as ordered when:

(i) the order, if made, would not in any way have been final nor would it have prevented the judge from re-adjusting the rights of the parties whenever the defendant chose to file a proper account;

(ii) the making of such an order is one of the sanctions provided by the rules of court against a Defendant who wilfully refuses to comply with an order of court;

(iii)The refusal to make the order sought leaves the Defendant in a state of disobedience to the order of court a state of affairs which the judge had declared in a previous ruling.”

Learned counsel for the appellant submitted that the order of the learned trial Judge especially enjoined the respondent to file an account and to verify it himself and that the account actually filed was not verified by the respondent himself but on his behalf by a chartered accountant. Learned counsel for the respondent, however, quite rightly, in our view, pointed out that when the respondent made his application for an order that the account in question “be deemed to have been duly filed”, there was no opposition or objection whatever by learned counsel for the appellant, and that the learned trial Judge himself made the order “as prayed”. There has been no appeal from that decision and it accordingly stands and we decline the invitation of learned counsel to allow that decision to be questioned at this stage. Indeed, it is clear to us that the present appeal can only be against the decision of the learned trial Judge to make an order that the respondent do give security instead of such immediate payment.

Learned counsel for the appellant submitted further that one of the remedies open to a party when the opposite party refuses to obey an order of court is to ask for judgment under Order 2, rule 12(b) of the Judgments (Enforcement) Rules. Order 2, rule 12(b) provides as follows:-

“12. Without prejudice to any other means of enforcement authorised by the Law or these rules, an interlocutory order may be enforced according to the following provisions-

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(b) if a Defendant in any suit makes such default or failure the court may give judgment by default against such Defendant, or make such other order as to the court may seem just; but any such judgment by default may be set aside by the court upon such terms as to costs or otherwise as the court may think fit.” Counsel therefore contended that the respondent was in default and that this default could be remedied by compelling him to pay forthwith the sum claimed in the appellant’s application, that is, the sum of N28,266.67, “pending the determination of this suit”, and that Rule 12(b) is wide enough to enable a judge to make an order, whether for final judgment or any other order that would remedy the particular default.

However, learned counsel for the respondent submitted that Rule 12(b) relates to the enforcement of interlocutory orders and that since the order for the filing of an account by the respondent in terms of the Writ of Summons and the Statement of Claim was final, and not interlocutory, and judgment was given on that item of the claim, Rule 12(b) cannot apply. He contended further that, in any event, Rule 12(b) left the matter entirely in the discretion of the learned trial Judge and that his discretion had been correctly applied in the circumstances. He pointed out that, the account having been deemed to be duly filed, there was no obstacle in the way of surcharging and falsifying it, or in submitting it to a referee, so as to ascertain the correct sum due to the appellant.

At this stage, it is necessary to revert to the ruling of the learned trial Judge who, without any evidence other than the affidavit evidence of the appellant, and without any opportunity to the respondent to cross-examine the appellant, was required to arrive at a decision that the respondent should pay the sum stated to be owing by him to the appellant in the appellant’s Statement of Claim. The learned trial Judge said –

“Much as I sympathise with the position of the Plaintiff it must be pointed out that the present application is entirely against the very nature of an action for an account. If I am to make the order which the Plaintiff seeks I would be prejudging the issue. I would be assuming that the Defendant had received so much, that he had incurred no expenses and I would be assuming that he is liable to account for so much to the Plaintiff. I do not consider that that is a proper exercise for the court. As I understand it, accounts are taken to ascertain the ultimate amount, which on consideration of a number of debits and credits, one litigant owes to another. It is my view that it is not reasonable to make an order for payment over to the Plaintiff until the exact amount due and owing to him is ascertained. I am therefore not inclined to make the order for the Defendant to pay a sum of N28,266.67 to the Plaintiff. There is no basis for making the order.

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I appreciate the fact that when the account between the parties is surcharged and or falsified some sum of money will be due to be paid over to the Plaintiff.”

We fully appreciate the situation in which the learned trial Judge found himself when dealing with the application. Further, he also appeared to be aware of the fact that the application was an attempt to make a “short-cut” through the normal procedure following upon an order for an account. In the present circumstances, an account had actually been filed and is “deemed to have been duly filed”. It is also deemed to have been filed and served within time. The appellant completely ignored these facts in his application and, accordingly, failed to take note of the fact that the respondent was not in default as he had complied with the relevant order of the court. Indeed, it is the appellant who now appears to be in default for not making appropriate steps to have the account surcharged or falsified, if necessary. In the circumstances, therefore, it is not necessary for us to decide whether the order for an account was a final or interlocutory order, particularly as the point was not seriously argued before us. And even if we accept the contention of learned counsel for the appellant that the order was interlocutory, we are firmly of the view that the learned trial Judge would nevertheless have had a discretion in deciding to give judgment by default or to make “such other order as to the court may seem just”, and that he had correctly applied his discretion in the circumstances of this case by declining to make the order sought by the appellant and making instead an order that the respondent should give security with two sureties in the sum of N30,000.00.

We would like, however, to draw the attention of learned counsel for the appellant to the provisions of Order 29 of the High Court of Lagos State (Civil Procedure) Rules, relating to “Issues, Inquiries and Accounts” and, in particular to rule 10 which provides as follows-

“If it shall appear to the court or a Judge in chambers that there is any undue delay in the prosecution of any accounts or inquiries, or in any other proceedings under any judgment or order, the court or Judge in chambers may require the party having the conduct of the proceedings, or any other party, to explain the delay, and may thereupon make such order with regard to expediting the proceedings or the conduct thereof, or the stay thereof, and as to the costs of the proceedings as the circumstances of the case may require; and for the purposes aforesaid any party may be directed to summon the persons whose attendance is required, and to conduct any proceedings and carry out any directions which may be given.”

In the result, this appeal is dismissed with costs to be paid by the appellant to the respondent assessed at N198.00.

Other Citation: (1978) LCN/2084(SC)

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