Chief J. A. Ademeso was the 1st defendant in the court of trial. The respondents, Mrs. Maria Okoro and Mr. Justin Okoro as administratrix and administrator of the estate of Late Alloysius Okoro, were the plaintiffs before the Ikeja Judicial Division of the High Court of Lagos State. By a Writ of Summons dated 31st January, 1995 the plaintiffs' claimed against the 1st defendant along with three other persons, inter alia for an order for specific performance directing the 1st defendant to execute the deed of transfer and/or the sale agreement in respect of property at No. 22 Oluti Street, Oluti Amuwo Lagos having received the sum of N350,000:00 (Three hundred and fifty thousand Naira) being the agreed purchase price.

The plaintiffs pleaded in paragraph 14 of their statement of claim that the plaintiffs aver that after paying the total sum of N350.999.00 (Three hundred and fifty thousand, nine hundred and ninety nine naira) the 1st defendant returned the draft Deed of Assignment with minor corrections for final execution to the plaintiffs and also released some other documents as positive step to transfer his interest in the property to the plaintiffs.

Upon the receipt of the Writ of Summons and the Statement of Claim, the 1st defendant served on the plaintiffs a Notice to produce dated 25th day of April, 1995 for inspection of the 1st defendant…………… "the draft Deed of Assignment with minor corrections referred to in paragraph 14 of the plaintiff's Statement of Claim." The 1st defendant received no response from the plaintiffs. In consequence thereof, the 1st defendant made an application to the trial court dated 21st June, 1995 and filed on 22nd June, 1995 for an order directing the plaintiffs/respondents to produce for the inspection of and permit the 1st defendant/applicant or his counsel to take a copy of the "draft Deed of Assignment" pleaded in Paragraph 14 of the Statement of Claim

On 12th July, 1995 the plaintiffs filed a "counter-affidavit" to the application of the 1st defendant. The pertinent paragraphs of the "counter-affidavit" was the fact that the plaintiffs inadvertently omitted from paragraph 14 of their Statement of Claim the fact that they had returned the corrected version of the Deed of Assignment to the 1st defendant for execution, and thus the said draft Deed of Assignment was not with any of the plaintiffs but with the 1st defendant. They also stated in their “counter affidavit" the fact that they intended to amend their Statement of Claim to reflect the true position as stated above." At the hearing of the application for production of the document, the judge at the lower court dismissed the application on the grounds that the 1st defendant failed to deny the fact that the document was in his possession as deposed to in the plaintiff's counter affidavit and hence the fact was admitted and that the court saw no reason why a party with a document could be requesting that the same document be produced by a party who denies having the document. Dissatisfied by this decision the 1st defendant

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