Supreme Court
Action No. 174 of 1977
12th December, 1978
Malone, C.J.

Mr. M. Sosa for the Plaintiffs in the original action
Mr. D.B. Courtenay for the Defendant by counterclaim
Mr. Denys Barrow for the Defendant to the original action.

Action for possession of premises - Interrogatories - Purpose of interrogatories - To elicit facts relevant to the dispute and within knowledge of the party interrogated which go to support the applicant's case or to impeach or destroy the opponent's - Not confined to facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue - Court disallows oppressive and unnecessary interrogatories, orders that others be answered.

J U D G M E NT

On the 4th of May, 1978 the Defendant Moody (hereinafter referred to as "the Defendant") applied to this Court for an order that he be at liberty to serve on the Plaintiffs to the original Action (hereinafter referred to as "the Plaintiffs") and on Roque Ramirez (the Defendant by counterclaim) (hereinafter referred to as "Roque Ramirez") interrogatories in writing. The application was made after the case had been first set down for hearing on the 8th February, 1978. On that ground, it was submitted by Counsel for Roque Ramirez that it was made for the purpose of delaying the hearing and should not be entertained. To my mind, there is no substance in that objection as the facts are these: On the 22nd December, 1977, the Defendant's defence was delivered to the Plaintiffs with the heading of the Action which had commenced as an Action between the Plaintiffs and the Defendant, changed to what it is now so as to include Roque Ramirez. The Defendant thus gave a clear indication that it was his intention to join Roque Ramirez. There was some delay in serving Roque Ramirez with the defence and counterclaim, as appears from a pencilled note on a copy of the defence and counterclaim, with the result that he was not served until the 7th March, 1978. It was therefore not in order for the action to have been set down for hearing on the 8th February 1978. Appearance was entered by Roque Ramirez on the 16th March, 1978, by which time he had also been served with the amended defence and counterclaim. His defence to the amended counterclaim was then filed and delivered on the 28th March, 1978. Consequently, as this application to serve interrogatories was made in just over a month after the delivery of the defence to the amended counterclaim, it is, I think, manifest that there has been no delay on the part of the Defendant. Nor do those facts support the suggestion made that the application is made in order to delay the trial of the Action.

Of the 22 interrogatories submitted, the Plaintiffs are called upon to answer numbers 1 and 2, numbers 5 and 15 (inclusive) and number 22; whilst Roque Ramirez is called upon to answer all save number 5. The Action by the Plaintiffs is one for possession of certain premises, which they claim the Defendant has wrongfully been in possession of since the 22nd January 1975. In brief, the case of the Defendant is that he became seised of the premises and entitled to their possession as heir at law of his father, Charles Athelston Moody, when the latter died on the 10th of November 1949. And he further says that at all material times he was and is the owner of the premises and entitled to their possession as he impugns a deed of the 3rd June, 1972, relied upon by Roque Ramirez as conveying the premises to him and a deed of the 2nd January, 1975, which the Plaintiffs claim conveyed the premises to them. As regards the deed of the 3rd June 1972, the Defendant says that it was not a conveyance but was intended only as a mortgage. The deed of the 2nd January, 1975, he describes as a purported conveyance alleging in the ninth paragraph of his defence that:

"9. The plaintiffs at the time of taking the said purported conveyance from the said Roque Ramirez did so fraudulently as the plaintiffs had or ought to have had notice that the said Roque Ramirez held only a mortgage on the said premises and not the unencumbered fee simple in possession".

Whilst fraud is denied by the Plaintiffs and Roque Ramirez, and both aver that the deed of the 3rd June, 1972 was a conveyance, it is admitted by Roque Ramirez in paragraph 3 of his defence to the Defendant's amended counterclaim, that the deed of the 2nd January, 1975, was only a purported conveyance.

It is against that background of two disputed deeds, of which one is alleged to be fraudulent, that the interrogatories which Counsel for the Defendant stated were directed solely to the issue of fraud, must be considered. By that statement, however, I do not understand Counsel to mean that because an interrogatory which could further his case of fraud with respect to the deed of the 2nd January 1975, might also advance his case of mistake with respect to the deed of the 3rd June, 1972, it should not be allowed.

An interrogatory, as is well known, is one of the means devised by the Courts for shortening the length of trials and so reducing the costs of trials. Its purpose is to elicit facts relevant to the dispute and within knowledge of the party interrogated which go to support the applicant's case or to impeach or destroy the opponent's. Its scope, as was said by Lord Esher M.R. in Marriott v Chamberlain (1886) 17 Q.B.D.154, at p. 163, "is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue."

Upon this application, interrogatory 1 is directed to finding out what sum, if any, was paid by the Plaintiffs or, as the case may be, by Roque Ramirez, for the purchase of the premises. Interrogatory 3, which is confined to Roque Ramirez, puts the same question in another way by asking what sum, if any, was received by Roque Ramirez as payment for the premises. The objection taken by Counsel for the Plaintiffs to Interrogatory 1 and its supplement Interrogatory 2, if the answer to Interrogatory 1 is in the affirmative, is that it is directed to the contents of a deed, namely the deed of the 2nd January, 1975, which is on record at the General Registry and not to the contents of a document that has been lost. Accordingly, it is said that an inspection would provide the Defendant with the same answers to the questions raised by Interrogatories 1 and 2. To my mind, that objection is sound for the reason that as by paragraph 1 of the Statement of Claim, the Plaintiffs rely on the deed of the 2nd January, 1975 in support of their claim that they are the owners of the parcel of land and entitled thereby to possession of it, an inspection of that deed would, I think, meet the requirements of the Defendant. It would be oppressive, in my view, to require the Plaintiffs to answer what is in fact alleged by their pleading. For that reason, I rule that the Plaintiffs are not required to answer Interrogatories 1 and 2. Should Roque Ramirez be made to answer Interrogatories 1 and its supplement 2? On the face of it, those interrogatories in relation to him are relevant to the issue of mistake concerning the deed of the 3rd June, 1972. As the contents of that deed must be known to the Defendant and as Roque Ramirez relies on it, I think that in this instance also it would be oppressive to require him to answer those interrogatories. I therefore rule that those interrogatories be disallowed in his case also.

With regard to Interrogatory 3 and its supplement Interrogatory 4, if the answer to Interrogatory 3 is in the affirmative, the position of Roque Ramirez is, however, different. As he admits that the deed of the 2nd January, 1975 is a purported conveyance, it would seem to me to be highly relevant, in view of the allegation of fraud, to know whether he will say that he at any time sold the property and if so to whom, for what sum, when, in what form that sum was paid, and whether it was in part or complete payment for the sale. I therefore rule that Roque Ramirez must answer Interrogatory 3 and its supplement 4, if the answer to 3 is in the affirmative.

Interrogatory 5, which the Plaintiffs alone are required to answer, is similar to Interrogatory 6. The purpose of Interrogatory 5 is to find out if at the time of the execution of the deed of the 2nd January, 1975 the Plaintiffs carried out an inspection to ascertain whether or not anyone was in occupation of the land whilst the purpose of Interrogatory 6 is to ascertain if either the Plaintiffs or Roque Ramirez, knew that the Defendant was in occupation. To my mind, both questions are relevant to the issue of fraud. For, as Counsel for the Defendant pointed out, if there had been an inspection by the Plaintiffs resulting in the discovery of the presence of the Defendant, or if either the Plaintiffs or Roque Ramirez knew that the Defendant was in occupation, the issue of fraud could well be affected. I rule, then, that the Plaintiffs must answer the Interrogatory 5 and that they and Roque Ramirez must answer Interrogatory 6.

Interrogatories 7 and 9, with 8 which is supplementary to 7, in the event of the answer to 7 being in the affirmative, raise questions concerning the payment of rent. The purpose of Interrogatory 7 is to ascertain whether rent was at any time paid to the Plaintiffs or to Roque Ramirez whilst 9 seeks to discover whether either knew that rent was being paid to the Defendant. As it is, the Plaintiffs' case that their right to the land came into existence with the deed of the 2nd of January, 1975, and as they say that as from the 2nd January, 1975 the Defendant has been in wrongful possession of the land, I fail to see how either the case of the Defendant can be advanced or the case of the Plaintiffs impeached by requiring the Plaintiffs to answer Interrogatories 7 and 8. On the other hand, Interrogatory 9, in relation to the Plaintiffs, falls into a similar category to Interrogatory 6, for if the Plaintiffs knew on or before the 2nd January, 1975 that rent was being paid to the Defendant, that knowledge could have bearing on the issue of fraud.

The reasons which led me to rule that Roque Ramirez must answer Interrogatories 3 and 4 apply also, as regards him, to Interrogatories 7 and 8 with respect to any payments of rent that may have been made after the 2nd January, 1975, as he admits the deed of that date to be a purported conveyance, and the reason which led me to rule that Roque Ramirez must answer Interrogatory 6 applies also, as regards him, to Interrogatory 9. I therefore rule that Roque Ramirez must answer Interrogatories 7 and 8 with respect to any payments of rent that may have been made after the 2nd January 1975 and that he must answer Interrogatory 9.

Interrogatories 10 - 15 (inclusive) can be dealt with together as they share the common feature that the Plaintiffs and Roque Ramirez are being asked about payments which, as owners of the premises, they could be expected to have made; namely property tax or fire rate, insurance premiums and payments in respect of repairs. It was submitted by Counsel for the Defendant that these questions could properly be put on the ground that as the Defendant is saying that the premises have always been his, he is entitled to ask the Plaintiffs and Roque Ramirez if they are in fact going to say that they have made payments of this description. To my mind, in so far as the Plaintiffs are concerned, the interrogatories must be disallowed for the reason I gave in ruling that the Plaintiffs had not to answer Interrogatories 7 and 8. As regards Roque Ramirez, it would seem to me that whilst on the face of them, Interrogatories 10 - 15 (inclusive) appear to be directed to the issue of mistake, they can be of assistance to the Defendant's case of fraud. The position is similar to the position I found when considering whether Roque Ramirez should answer Interrogatories 3, 4, 7 and 8. I rule, therefore, that Roque Ramirez must answer Interrogatories 10 - 15 (inclusive) with respect to any payments made after the 2nd January 1975.

Interrogatories 16 - 21 (inclusive) concern only the Defendant Roque Ramirez. To my mind, these fall into the same category as Interrogatories 10 - 15 (inclusive) in that, although they may further the Defendant's case of mistake in relation to the deed of the 3rd June, 1972, they are capable of advancing his case of fraud with respect to the deed of the 2nd January, 1975, as the answers may serve to explain why Roque Ramirez admits that the deed of the 2nd January, 1975, is a purported deed. I shall therefore allow them.

So, finally Interrogatory 22. The reasons which led me, as regard the Plaintiffs, to disallow Interrogatories 7 and 8, and 10 -15 (inclusive) to my mind apply here also. As, however, Roque Ramirez admits that the deed of the 2nd January, 1975 is a purported conveyance, he must, I think, be called to answer this Interrogatory.

In the result, I rule that of the interrogatories respectively asked of them, the Plaintiffs answer 5, 6 and 9, and Roque Ramirez all, save Interrogatories 1 and 2.

----------OO----------