The 1st respondent Company brought an action in the Lagos High Court in which he sought a declaration that certain cargo held by the appellants (then 2nd defendant) belonged to it (plaintiff company) and for other relief’s. Before the action proceeded to hearing he brought two motions ex parte and on notice seeking similar relief, under 0.39, r3 High Court of Lagos State (Civil procedure) Rules. Under that rule of court, a Court or a Judge in Chambers can make an order for the sale by any person or persons named, and on such terms as the Court or Judge may think desirable, of any goods, wares or merchandise which may be of perishable nature or likely to injure from keeping, or which for any other just reason, it may be desirable to have sold at once.

On the 19th of May, 1986 counsel for the appellants (the 2nd defendant) in answer to a question by the Court in that regard, gave an undertaking that the rice in question was not yet sold and would not be sold until the motion on notice is disposed of.

On 22nd of May, 1986, 4 Senior Officials of the Appellant Company deposed to a 24 paragraph affidavit, the substance of which was that the rice in question had been disposed of before the 16th of May, 1986 when the action was filed. Apparently, to rectify the mistake as to the time the action was filed, counsel to the appellants, on the 11th of June, filed a further affidavit to the effect that the rice in question had been sold long before the action actually commenced which incidentally was earlier than 16th May, 1985 and that that date as contained in the earlier affidavit was a mistake. In reply to these, 1st respondent swore to a further affidavit denying the depositions of the appellants. On this state of evidence, the trial court, without resolving the conflicts in the affidavit evidence of parties, made an order that the rice be handed over to the Nigerian Merchant Bank for sale and that money already deposited there by buyers be handed over to the Chief Registrar. High Court and it is significant to state that in so ordering, the court had relied on the undertaking of counsel given on the 19th of May, 1986 treating the question of the existence of the rice or otherwise as a non issue. The appellants appealed to the Court of Appeal, which dismissed their appeal.

The grounds of appeal included inter alia, that counsel’s undertaking without authority of his client could not have been relied upon, that the order went to the roots of the substantive action and had the effect of compromising the issues therein, that a court could not make an order that was incapable of obedience, and that the court could not exercise its discretion under 0.39, r3 of the High Court rules in such a way as to affect a person not a party to the suit or directly affected thereby.