Cadbury Nigeria Plc V. R. Benkay Nigeria Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of Honourable Justice Y.A. Adesanya of the Lagos State High Court delivered on the 11th of July 2008 wherein the learned trial Judge after an enquiry as to damages awarded the sum of N3,048, 423.20 (Three Million, forty eight thousand, four hundred and twenty three naira, twenty kobo) to the Respondent as damages for the unlawful detention of the Respondents’ 30 tones Mercedes Benz trailer with registration number BD 4053A between 24th March 1997 and 17th April 2000 pursuant to an unlawfully obtained order of mareva injunction dated 24th March 1997.

FACTS – The Appellant was Claimant at the High Court, and he instituted an action against the Respondent claiming the sum of N5,108,210.30 (Five million, one hundred and eight thousand, two hundred and ten naira, thirty kobo.) as value of the goods it consigned to the Respondent to be delivered to its customer in Aba.

The goods were allegedly lost in transition on 12/9/1996 by the Respondent, through an alleged robbery attack at Agbor, Delta State.

By motion ex-parte dated 24/3/07 the Appellant obtained an order authorizing it to keep in its premises, the Respondents’ trailer.

The Respondent did not apply to set aside this order but filed its Statement of Defence and Counter Claim, as well as a Notice of Preliminary objection to the suit – Pages 41 – 84 of the (Record of Appeal).

After other processes were filed and after the filing of various affidavit evidence, the High Court of Lagos State coram Y.A. Adesanya J, awarded the sum of N3,048,423.20k as damages for the detention of the Respondents’ Trailer between 24/3/97 and 17/4/00 pursuant to the Court order of 24/3/97.

The Appellant is dissatisfied with the Ruling and in an amended Notice of Appeal filed on the 13th of April 2012 with five (5) Grounds of Appeal; he seeks an order of this Honourable Court setting aside the Ruling, and an order dismissing the application for enquiry into the quantum of damages dated 17th November 2005.

The respective parties filed their Briefs of Argument.

The Appellant filed its Brief of Argument on the 20th of April 2012. It is settled by Michael Amadi. There is a Notice of Cross Appeal with nine (9) Grounds of Appeal filed on the 7th of October 2008. The Respondent filed his Brief of Argument and cross Appeal on the 28th of May 2012. It is settled by A.C. Igboekwe Esq.,

There is Appellants’ Reply Brief of Argument and Cross Respondents’ Brief of Argument filed on the 28th of August 2012 but deemed filed on the 25th of February 2013, and a Cross Appellants’ Reply Brief filed on the 8th of March 2013.

The Appellant has distilled three issues for determination from the Grounds of Appeal. They are:

1. Whether the High Court per Adesanya J. was estopped from examining the application of 17/11/05 given that a similar application (on undertaking as to damages) had been considered and dismissed by the High Court of Lagos State in a Ruling on 8/3/02. This issue is distilled from Grounds 1 and 2 of the Amended Notice of Appeal.
2. Whether the sum of N3,048,423.20 awarded to the Respondent is supported by evidence adduced before the High Court. This issue is distilled from ground 3 of the Amended Notice of Appeal.
3. Whether in the circumstances of this case, the Respondent took adequate step to mitigate its loss. This issue is distilled from Ground 4 of the Amended Notice of Appeal.

On his part, the Respondent distilled two issues for determination. They are:

1. Whether from the facts and circumstances of this case, the learned trial Judge was right in holding that the Respondent did not fail to mitigate its loss.
2. Whether from the facts and circumstances of this case, the award of the sum of N3,048,423.20 in favour of the Respondent is supported by evidence before the Court.

On the 28th of May 2013, the parties adopted their respective Briefs of Argument.