‘In­junc­tion ob­tained by mis­rep­re­sen­ta­tion li­able to be dis­charged’

Daily Trust - - LAW -

IIn the Supreme Court of Nige­ria On Fri­day, the 23rd Day of March 2012 Be­fore their Lord­ship Ibrahim Tanko Muham­mad ..... Jus­tice Supreme Court ( JSC) Olu­fun­lola Oyelola Adek­eye ..... JSC Bode Rhodes-Vivour ..... JSC Nwali Slyvester Ng­wuta ..... JSC Mary Ukaego Perter-Odili ..... JSC SC29/2006 Be­tween R-Benkay Nige­ria Ltd .... Ap­pel­lant And Cad­bury Nige­rian Plc .... Re­spon­dent Judg­ment of the Court De­liv­ered by Nwali Sylvester Ng­wuta. JSC n 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 N5,108,210.30 be­ing the value of goods and costs suf­fered by the plain­tiff” FACTS 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-in­Tran­sit 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 its rul­ing of 12th April 2010 al­lowed the ap­peal and struck out the ap­pel­lant’s suit in the High Court.

Be it noted that the re­spon­dent in a coun­ter­claim 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 10/749/97. 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 de­fen­dant/ 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 for 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).

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