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.
R. Benkay Nigeria Limited appealed the dismissal of its preliminary objection to the Lagos Division of the Court of Appeal on 11 grounds from which six issues were framed for determination. In its judgment dated 7th March, 2005 the lower Court having resolved all the six issues against the appellant, dismissed the appeal with N10,000 costs against the appellant in favour of the Respondent.
By leave of this Court granting its application for the trinity reliefs on 8th February, 2007 the appellant appealed to this Court on eight grounds from which the following three issues were distilled by the appellant in its brief for determination:
“3.0: ISSUES FOR DETERMINATION
- Whether from the facts and circumstances of this case the obtaining of an order of mareva injunction by the Respondent on 20th April, 2000 permitting it to detain the Appellant’s 30 tonnes trailer with – registration No. BD 4053 A which trailer was the res in the appellant’s pending counter-claim in Suit No.ID/749/97 constitutes an abuse of Court process.
- Whether from the facts and circumstances of this case, the institution and continued prosecution of this suit (i.e. suit No.ID/999/2000 by the Respondent while the Appellant’s counter-claim in Suit No.ID/749/97 was still pending constitutes on abuse of Court process.
- Whether from the facts and circumstances of this case the order of mareva injunction dated 20th April, 2000 ought to be discharged.”
In its brief of argument, the Respondent, through its learned Counsel, formulated the following two issues for determination:
“(a) Whether the institution of Suit No.ID/999/2000 by the Respondent constituted an abuse of Court process.
(b) Whether the lower Court was right in refusing to discharge the order of mareva injunction granted by the High Court.”
Arguing issue one in his brief, learned Counsel for the appellant, referred to three reliefs sought by the appellant in its counter-claim in Suit No.ID/749/97 instituted by the Respondent. He said that the res, the appellant’s 30 tonne Mercedes Benz trailer with registration number BD 4053 A in the counter-claim in Suit No. lD/749/97 is also the res in this suit. He referred to paragraph 3(a) and (r) of the Respondent’s affidavit in support of its application for mareva injunction and submitted that not only did the respondent conceal the pendency of Suit No.ID/749/97 but deliberately informed the trial Court that the suit had abated and was no longer pending between the parties.
Learned Counsel argued that the respondent had, by filing the suit and obtaining an ex parte order of mareva injunction and an order to detain the appellant’s trailer, unlawfully interfered with the res in the appellant’s counterclaim in Suit No.ID/749/97. He said the respondent cannot be said to have used the process of Court bona fide or properly. He relied on Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 in his contention that the Respondent abused the process of Court. He referred to the trial High Court and argued that that Court, having determined that the detention of the appellant’s trailer by the respondent was wrong, would have granted the appellant’s reliefs in the counter-claim but for the fact that the respondent abused the process of Court by filing this suit.
Relying on Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156; Okorodudu v. Okoromadu (1977) 3 SC 71; Oyegbola v. Esso West Africa Inc (1966) 1 All NLR 170, he submitted that it is an abuse of Court process for a party to improperly use the issue of judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice as the respondent has done. He relied on Jumbo v. Petroleum Equalisation Fund Management Board (2005) 14 NWLR (Pt. 945) 442 for the Supreme Court’s decision that it is an act of disrespect and an act of bad faith for a litigant to manipulate the adjudicative process by taking steps which interfere with the proceeding in a pending case in which he is a party. He urged the Court to resolve the issue in favour of the appellant as, according to him, anything to the contrary will occasion a miscarriage of justice.
In issue two, Counsel referred to the counter-claim in Suit No.ID/749/97 and said that the counter-claim was still pending after the main Suit was struck out on 17th April, 2000. He said the parties and the subject matter in the counterclaim and Suit No.ID/749/97 are the same as in this case and that the statement of claim of the respondent herein is the same or substantially the same as its statement of defence in Suit No.ID/749/97 and that the statement of defence of the appellant herein is the same or substantially the same as its counter-claim in Suit No.ID/749/97.
He referred to the affidavit evidence and urged the Court to accept that the two Suits are the same since the respondent did not controvert the appellant’s averment to that effect. Relying on Long John v. Blakk (1998) 6 NWLR (Pt.555) 524; Ayoola v. Baruwa (1999) 11 NWLR (Pt. 628) 595 and Alasbe v. Abimbola (1978) 2 SC 39, Counsel urged the Court to deem the facts admitted in law. He said that the facts of this case show that the respondent exercised its right of action in a manner to harass, irritate and annoy the appellant as well as interfere with the due administration of justice.
Learned Counsel referred to Ord. 19 Rules 9 and 16 of the High Court of Lagos State Civil Procedure Rules 1994 and argued that the respondent should have filed a counter-claim or set off in its statement of defence and the entire suit would have been disposed of in one Court. He relied on O gbonna v. A-G Imo State (1992) 1 NWLR (Pt.220) 647 at 675 and submitted that the respondent could have filed a counter-claim to the appellant’s counter-claim.
Learned Counsel argued that the Court has a duty to allow his appeal in order to protect the integrity of the judiciary adding that a dismissal of his appeal will ridicule the judicial system with conflicting judicial decisions on the same matter. He relied on Yale v. AG Leventis & Co. Ltd. (1965) Vol. 4 NSCC 132 at 134 in his contention that the respondent ought to have brought a counter-claim and a set off in Suit No.ID/749/97 for the conflicting claims to be determined in one suit.
On the authority of Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (pt.102) 122 ratio 29, he submitted that the conduct of the respondent is not only vexatious and oppressive but also malicious and in bad faith and therefore constitutes abuse of Court process. Concluding his lengthy argument and plethora of authorities, learned Counsel urged the Court to resolve issue two in favour of the appellant.
In issue three, learned Counsel argued that the order of mareva injunction should not have been made in the first place and that the injunction ought to be discharged, for the reason that Suit No. ID/749/97 in which the order was made was struck out on 17th April 2000. He referred to paragraph 3 (r) of the affidavit in support of the respondent’s motion ex parte for mareva injunction in the suit and charged that the respondent misled the trial Court by withholding the fact that though the Suit No.ID/749/97 was struck out. The appellant’s counter-claim therein was still pending. He referred to Okeke v. Okoli (2000) 1 NWLR (Pt. 642) page 641 in his submission that where an ex parte order is based on an important misstatement, the Court should not hesitate to discharge the order.
Learned Counsel impugned the judgments of the two Courts below for holding that the facts allegedly suppressed in the application for mareva injunction in the suit was not relevant or material to the application. He argued that the fact that the trailer registered as BD 4053 A was the res in the counterclaim in Suit No.ID/749/97 would have led to a denial of the ex parte application for mareva injunction in relation to the same trailer in this suit. He relied on Ojukwu v. Governor Lagos State (1996) 3 NWLR (Pt.76) 39 in urging the Court to discharge the order for non-disclosure of relevant facts in the application for same.
He relied on Lawal-Osula v. Lawal-Osula (1995) 3 NWLR (Pt. 382) 128; Aruruba v. Ebenator Community Bank Ltd. (2005) 10 NWLR (Pt.933) 321, in urging the Court to discharge the order as the respondent violated good conscience in the application for the equitable relief. He contended that on the facts of the case, there is no moral or legal basis for the mareva injunction and urged the Court to discharge same. He urged the Court to resolve all the three issues in the appeal in favour of the appellant and to allow the appeal.
Issue one in the respondent’s brief queried whether or not the institution of Suit No.ID/999/2000 constitutes abuse of process of Court. Arguing the issue in his brief, learned Counsel for the Respondent conceded that the parties in Suit No.ID/740/97 and Suit No.ID/999/2000 are the same but argued that this alone did not establish the allegation of abuse of process of Court. He argued that there is nothing in the appellant’s affidavit evidence of 12th July 2000 to show that the respondent used Suit No.ID/999/2000 to irritate or annoy the appellant or hinder the efficient and effective administration of justice. In the reaction to paragraph 5.06 in the Appellant’s brief, Learned Counsel urged the Court to decline the invitation to make use of documents other than those contained in the record of appeal. He relied in Ogolo v. Fubura (2003) 5 SC 141, 162.
He argued that all that the appellant’s affidavit evidence tended to show is that the mareva injunction and custodial orders are improperly obtained and argued that any impropriety associated with the ex parte orders cannot taint or render an otherwise valid suit invalid; adding that the affidavit evidence in support of the appellant’s motion did not demonstrate bad faith on the part of the respondent. He relied on NDIC v. CBN (2002) 7 NWLR (Pt.766) 272 at 284-285 and argued that the appellant did not adduce evidence of bad faith on the part of the respondent. He urged the Court to affirm the decision of the lower Court that once Suit No. ID/749/97 was struck out; the respondent was free to file a fresh action.
For the unchallenged averments in the appellant’s affidavit, learned Counsel contended that though the averment is not challenged, the Court is bound to evaluate and ensure its credibility and determine if it can sustain the claim. He relied on Gonzee Nig. Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634 at 638. He said that the lower Court found that the deposition on the subject matter by the appellant was not only incredible but also an affront to common sense.
He referred to the authorities cited by the appellant and said none of them decided that a counter-claim was mandatory. He argued that where a party has discretion in the exercise of his rights the other party cannot be heard to complain that the party exercised his discretion one way or the other. He relied on Hondy v. Elpwich (1973) 2 All ER 914, which was relied on in Fasakin Foods (Nig.) Co. Ltd. v. Shosanya (2003) 17 NWLR (Pt. 849) 237 at 248. He argued that the lawful exercise of the right of the Respondent to file the suit cannot be subjected to the whims of the appellant. He relied on Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 170.
He contended that Suit No.ID/999/2000 was not filed to harass, annoy or oppress the appellant, adding that the suit was filed in bona fide exercise of the Respondent’s right of action. Learned Counsel argued that the case of Nigeria Intercontinental Merchant Bank Ltd. v. Union Bank of Nigeria Ltd. (2004) 12 NWLR (Pt.888) p.599 relied on by the appellant is of no avail as there is no duality of courts involved in this case but only the High Court of Lagos State.
Learned Counsel urged the Court to endorse the decision of the lower Court that Suit No. ID/999/2000 does not constitute abuse of process. He urged us to resolve the issue in favour of the respondent. In issue two, learned Counsel for the Respondent submitted that the question of whether the mareva injunction ought to have been granted does not emanate from the judgment of the lower Court. Accordingly, he urged Court to ignore the arguments in paragraphs 5.54 to 5.59 of the appellant’s brief as untenable. As for the prayer that the mareva injunction be lifted, learned Counsel argued that the order sought to be discharged does not exist.
He referred to page 31 of the record and submitted that the order restricting the appellant from disposing of its vehicle with registration number BD 4053 A which was made to last for 15 days from 20th day of April, 2000 has expired by effluxion of time. He argued that what subsists today is the order on the Deputy Sheriff of the High Court to take possession of the Respondent’s trailer and keep same at the premises of the State High Court; that the issue is academic since it is not the focus of the appellant’s issue three.
On the allegation of non-disclosure of material facts, learned Counsel referred to pages 143 and 311-312 of the record where the trial Court and the lower Court respectively found that the non-disclosure of the existence of the counter-claim was not material to the grant or refusal of the application for injunction in suit No.ID/999/2000. He argued that the bare assertion that the two lower Courts are wrong without more does not demonstrate how the fact allegedly withheld would have affected the consideration of the appeal if it had been disclosed. He described the greater part of the appellant’s brief as an exposition of judicial authorities rather than submissions based on evidence adduced in Court.
Relying on Amadi v. NNPC (2000) 10 NWLR (Pt. 674); Gbebe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265 at 297 and Oguejiofo v. Oguejiofor (2006) 1 SC (Pt.1) 157, learned Counsel urged the Court not to disturb the concurrent findings of the two lower Courts which were supported by evidence and which are neither perverse nor resulted in a miscarriage of justice. He argued that even if there was non-disclosure of material facts, the nondisclosure was not intentional. He relied on Behbeham v. Salem (1989) 1 WLR 723, 728; Ali and Fahd Shobokshi Group v. Moneim (1989) 1 WLR 210, 719-720.
He argued that not every non-disclosure will result in the discharge of mareva injunction as the Court may continue the order, or make a new order on new terms. He relied on Brimak’s Mart Ltd. v. Elcombe (1988) 3 All ER 188 at 193 and placing reliance on Order 8 Rule 2 (3) of the Supreme Court Rules 1999 (as amended), he urged the Court to strike out ground 1 particulars (iii), (iv), (v), (vi), (vii); 2 particulars (i), (ii), (iii); 3 particulars (iii), (iv); 4 particulars (ii), (iii), (iv), (vi); 5, 6 particulars (iii) and (iv) as argumentative and narrative. He relied on Gada v. Kito (1999) 12 NWLR (Pt.629) 21 at 39; Skenconsult v. Ukey (1981) 1 SC 6 and 39. He urged the Court to dismiss the appeal.
Having considered the record of the Court below and the briefs filed on behalf of the parties, I am of the view that the two issues raised by the Respondent are subsumed in the appellant’s three issues and I intend to determine the appeal on the said three issues.
Issue one in the appellant’s brief is hereunder reproduced once more:
“Whether from the facts and circumstances of this case, the obtaining of an order of mareva injunction by the Respondent on 20th April 2000 permitting it to detain the Appellant’s 30 tonnes trailer with registration No.BD 4053 A which trailer was the res in the Appellant’s pending counter-claim in Suit No.ID/749/97 constitutes on abuse of Court process.”
Abuse of Court process means that the process of the Court has not been used bona fide and properly. See Central Bank of Nigeria v. Saidu H. Ahmed & Ors. (2001) 5 SC (Pt.11) 146; Edjerode v. Ikine (2001) 12 SC (Pt.11) 125.
The concept of abuse of Court process is imprecise. It involves circumstances and situations of infinite variety and conditions but it has a common feature in improper use of the judicial process by a party in litigation to interfere with the due administration of justice. See Agwasim v. Ojichie (2004) 10 NWLR (Pt.882) 613 at 624-625 (SC).
In Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188, this Court on abuse of Court process held:
“…the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of action on the same subject matter against the some opponent on the some issue.” See also Okorodudu v. Okoromadu (1977) 3 SC 21.
From the pronouncement of this Court reproduced above, to constitute abuse of Court process, the multiplicity of suit must have been instituted by one person against his opponent on the same set of facts. The Respondent filed Suit No.ID/999/2000 in which the order of mareva injunction was made in his favour on his motion on 20th April 2000. This was during the pendency of the appellants counter-claim in Suit No.ID/749/97, suit No.ID/749/97 was struck out leaving the counter-claim which has a life of its own and independent of its source, the main suit. see Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254 at 281; Ige v. Farinde (1984) 7-8 SCNJ 284.
The issue of multiplicity of suits by the same person against another on the same subject matter does not arise. As a matter of fact, whether a case constitutes abuse of Court process will depend on the facts and circumstances of that case’ Appellant appreciated that point when he framed issue one in which he urged the court to determine the issue on the available facts and circumstances. Whether a suit constitutes abuse of court process is a matter of the facts of each case.
In this appeal, the record shows that both the trial court and the court below found as a fact that suit No.ID/999/2000 in which the order was made did not constitute abuse of process of court. The order made in the said case cannot be said to be abuse of court process, as found by the two courts below. This is a concurrent finding of fact by the two lower courts and the appellant has not provided any material for this court to disturb the said findings. see Lucy Onowon & Anor v. JJJ Iseribien (1976) 9 & 10 SC 25; Nnajiofor & Ors v. Ukonu & Ors (1986) NSCC 1067; Ige & Anor v. Akogu & Ors (1994) NWLR (Pt.340) 535 at 540.
The case law relied on by the appellant give the respondent the choice of instituting a separate action or filing a counter-claim to the counter-claim filed by the appellant. The Respondent can adopt one or the other option and it does not lie in the mouth of the appellant to complain about the choice made by the Respondent. I resolve issue one against the appellant.
In resolving issue one, I have determined that Suit No.ID/999/2000 in which the mareva injunction was made does not constitute abuse of court process’ thus resolving issue two. The issue is resolved against the appellant.
In issue three, the appellant questioned the propriety of the mareva injunction made on 20th April 2000. The order was made to last for 15 days from 20th April 2000. The order had been discharged by passage of time on 2nd August, 2007 when the appellant filed his brief in this appeal. The question of the propriety vel non of the order has become academic. The issue is resolved against the appellant.
All the issues have been resolved against the appellant. The appeal is bereft of merit and it is hereby dismissed. Appellant to pay N50,000.00 costs to the Respondent.