R-benkay Nigeria Limited. V. Cadbury Nigeria Limited (2012)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

In the Writ of Summons and Statement of Claim filed simultaneously in the Registry of the High Court of Lagos State, Ikeja Judicial Division on 18/4/2000, the Respondent as plaintiff claimed against the appellant as defendant as follows:

“Wherefore the plaintiff claims from the defendant the sum of N5,108,270.30 being the value of goods and costs suffered by the plaintiff.”

Hereunder is a summary of the facts of the case.

The appellant and the Respondent are limited liability companies incorporated in Nigeria. The plaintiff carries on the business of manufacturing of food beverages and food items with head office and depot along Lateef Jakande Road Agidingbi, Ikeja, Lagos while the Respondent is engaged in carriage of goods for hire with head office at No. 20 Oguta Road, Onitsha, Anambra State.

On the application of the Respondent dated 12/2/96 for appointment as a transporter, the appellant so appointed the Respondent on 10th June, 1996. Pursuant to the Respondent’s acceptance of the appointment the parties executed a document titled: “Cadbury Nigeria Plc Terms and Conditions for Cadbury Nigeria Plc Transporters”. It was agreed that the Respondent should safely and securely transport goods for the appellant; pursuant to which the Respondent registered six (6) of its vehicles with the appellant on retainership.

On 11th October, 1996 the appellant delivered to the Respondent at the appellant’s depot at Lagos, and the Respondent accepted, goods for transportation on one of the vehicles registered with the appellant as ECN 147. The goods are itemised on “Direct Sales invoice No.0865323” of 11th October 1996. The consignment was not delivered to the consignee, one Mr. M. O. Okoro but was wholly lost in transit.

Contrary to the condition for its appointment, the Respondent did not possess valid and current Goods-in-Transit Insurance Policy on its vehicle that carried the lost consignment of goods. In spite of that loss of its goods, the appellant reached a second agreement with the Respondent as contained in the letter dated 21st January, 1997.

The purpose of the second agreement was to enable the Respondent recover the goods and carry on the business of transporting the appellant’s goods but the Respondent did not honour the terms of the second agreement. Pursuant to the agreement by the parties, the Respondent through its agents, drove its trailer registered BD 4053 A into the premises of the appellant. The appellant filed an action to recover the value of its lost goods from the Respondent and obtained an ex parte order on 24/3/97 to detain the Respondent’s vehicle BD 4053 A on its premises in Suit No. ID/749/97.

The Respondent filed a notice of preliminary objection to Suit No. ID/749/97 and in a ruling delivered on 12th June, 1998 the trial High Court dismissed the preliminary objection. The Respondent appealed the ruling dismissing its preliminary objection to the Court of Appeal, Lagos Division. The lower Court, in ruling of 12th April, 2010 allowed the appeal and struck out the appellant’s suit the High Court.

Be it noted that the Respondent in a counter-claim to Suit No. HD/749/97 claimed a mandatory order and declarative reliefs against the appellant based on the detention of its trailer. In the alternative, it made monetary claims as arising from the detention of the vehicle. The counter-claim, with a life of its own outside Suit No.ID/749/97 from which it originated, was still pending when the appellant commenced Suit No.ID/999/97 on 18/4/2000, a day following the striking out of its Suit No. ID/749/97. The appellant had, in its ex parte application, obtained an order to detain the Respondent’s vehicle No.BD 4053 A at its premises and a mareva injunction pending the disposal of the suit.

By way of Motion on Notice filed on 14/7/2000, the Respondent as def/applicant prayed the Court for an order to dismiss or strike out Suit No.ID/999/2000 as abuse of the process of Court or in the alternative an order to discharge the mareva injunction granted the appellant then plaintiff. It also asked or an order to stay proceedings in the suit pending final determination of Suit No.ID/749/97 (by which it meant the counter-claim it instituted in the suit).

Multiple affidavits and counter-affidavits were filed and written addresses filed. In its ruling delivered on 29/10/2001, the trial Court, presided over by Philips, J concluded that

“… I find that the preliminary objection filed by the Defendant lacks merit and it is accordingly overruled in its entirety…” See page 145 of the record.