Stabilini Visioni Nig. Ltd. V. Sanderton Ventures Ltd. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment)

The Respondent herein commenced this action at the court below on 4th June, 2002 by a Writ of Summons/Statement of Claim against the Appellant as 1st Defendant and the Commissioner of Police, Airport Police Command, Lagos as 2nd Defendant seeking the following reliefs:

“(a) A declaration that the 1st Defendant has by his various acts and conduct interfered with wrongfully and maliciously induced the breach and purported termination of the Plaintiff’s contract with the Federal Government of Nigeria and Federal Ports Authority of Nigeria for the construction of the Murtala Mohammed Airport Terminal 1, Lagos.

(b) Declaration that in pursuant of relief (A) above, the 1st and 2nd Defendants conspired to molest, intimidate and manhandled the servants of the Plaintiff and which acts were perpetrated with malice in order to injure the Plaintiff and dispossess the Plaintiff of the construction site.

(c) An order of injunction restraining the Defendants from disturbing/interfering with the Plaintiff’s possession or dealing adversely with its rights, properties and equipments on site”.

The Respondent also filed a Motion on Notice dated 3/6/02 and a Motion Ex-parte dated 27/6/02 for interlocutory injunction against the Appellant, its agents, servants, privies etc from interfering or doing anything or further doing anything to disturb or interfere with the Respondent’s possession of the construction site of the Local Terminal of the Murtala Muhammed Airport, Ikeja, Lagos, pending the determination of the suit.

Based on these motions, the court below made an order that the parties maintain the status quo and keep off the premises of the Respondent in issue with immediate effect pending the determination of the Motion on Notice filed in the said suit. The court below also made an Exparte order bearing the date of 27/7/02 that a Notice of Consequence of Disobedience to Order of Court in Form 48 to be served on Dr. Wale Babalakin and Chief T. K. Akinbami. The Appellant being dissatisfied with these orders filed Notice of Appeal dated 5/7/02 against the said order. A Motion dated 5/7/02 for stay of execution of the said order made on 4/7/02 and 27/7/02 was also filed in the court below.

Furthermore, the Appellant filed another Motion dated 5/8/02 seeking the following reliefs viz:

“That all proceedings on the said motion for interlocutory injunction be stayed or struck out on the ground that it was filed in abuse of the process of the Honourable Court and it is accordingly frivolous and vexations”‘

The ground of the said motion is that: “At the filing of the said motion for interlocutory injunction, proceedings were pending between the same parties raising the same or substantially the same issue in suit No. ID/386M/2002 before the Hon. Justice A. Ade-Alabi as raised in the present was motion and action for interlocutory injunction”.

On 9/4/03, the court below, in one of its Rulings, declared that it has no Jurisdiction to entertain a suit against the 2nd Defendant (the Commissioner of Police) and struck out its name.

After hearing argument on the motion filed on 5/8/02, the learned trial Judge on 14/8/03 dismissed the motion on various grounds including the premise that suit No. ID/38M/2002 pending before Ade-Alabi. J. substantially on the same issue had been discontinued when the Respondent filed Notice of Discontinuance on 27/6/02. Dissatisfied with the said Ruling, the Appellant filed a Notice of Appeal dated 26/8/03 though it is not apparent on the face of it when it was filed. Two grounds of appeal are contained in the said Notice of Appeal wherein, the Appellant has distilled three issues for the determination of this appeal. The issues are as hereunder stated:-

“1. whether a Notice of Discontinuance filed under order 24 Rule 1 of the High court of Lagos state (Civil Procedure) Rules 1994 is ineffective until it is moved by counsel with the leave of court.

2. whether the Respondent/Plaintiff’s second claim herein, alleging conspiracy against the Appellant/Defendant (as 1st Defendant) and the Commissioner of Police, Airport Police Command (as 2nd Defendant) can be completely tried in the state High court, particularly as this would involve the trial of a claim in which the commissioner of Police, Airport Police Command (as 2nd Defendant) with be a necessary party; whereas he had already been struck out as a party (2nd Defendant) by the court.
3. Whether by reason of the issues raised in 1 & 2 above, the action filed in the court below including the motion dated 3/6/02 for injunction, constitute abuse of court process and should be struck out”.

On 18th January, 2011 when this appeal was heard, the Respondent was not in court and was not represented by counsel, though she was duly served with hearing notice. Secondly, the Respondent did not file any brief in this appeal. It is on record that the Appellant filed its brief on 7/5/08 and same was served on the Respondent. On 9/2/10, the Appellant filed a Motion on Notice praying for an order that this appeal be heard on the Appellant’s brief alone, the Respondent having failed and/or neglected to file her brief. This application was granted on 13/10/10 by this court. As it stands, this appeal shall be determined only on the brief filed by the Appellant.