➥ CASE SUMMARY OF:
R-Benkay Nigeria Limited. V. Cadbury Nigeria Limited (SC.29/2006, 23 Mar 2012)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Abuse of court process;
Mareva injunction.
➥ CASE FACT/HISTORY
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.
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.”
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. 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?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THERE IS NO MULTIPLICITY OF COURT ACTION
‘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 and Anor v. JJJ Iseribien (1976) 9 and 10 SC 25; Nnajiofor and Ors v. Ukonu and Ors (1986) NSCC 1067; Ige and Anor v. Akogu and Ors (1994) NWLR (Pt. 340) 535 at 540.’
THE RESPONDENT HAS A CHOICE ON THE PROCESS TO USE
‘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.’]
.
.
.
✓ DECISION:
‘The appeal is bereft of merit and it is hereby dismissed. Appellant to pay ₦50,000.00 costs to the Respondent.’
➥ FURTHER DICTA:
⦿ ABUSE OF COURT PROCESS MEANS THE COURT PROCESS IS NOT BEING USED BONA FIDE
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 and 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. — N.S. Ngwuta, JSC.
⦿ CONCEPT OF ABUSE OF COURT PROCESS AND CIRCUMSTANCES IN WHICH IT ARISES
The concept of abuse of court process relying on numerous decided authorities is imprecise. It involves circumstances and situation of infinite variety and conditions. But a common feature of it is the improper use of judicial process by a party in litigation to interfere with the due administration of justice. The circumstances which will give rise to abuse of court process include:- a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues on multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds. c) Where two similar processes are used in respect of the exercise of the same right for example a cross-appeal and a respondent’s notice. d) Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of fact already decided by the lower court. e) Where there is no law supporting a court process or where it is premised on frivolity or recklessness. f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. g) It is an abuse of court process for an appellant to file an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. When the appellants application has the effect of over reaching the respondents application. h) where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima facie vexacious and an abuse of court process. Saraki v. Kotoye (1992) 9 NWLR, pt. 264, pg. 156 Oguejiofor v. Oguejiofor (2006) 3 NWLR pt. 966, pg. 205 Abubakar v. Unipetrol (2002) 8 NWLR, pt. 769, pg. 242 Plateau State v. Attorney-General of Federation (2006) 3 NWLR pt. 967, pg. 346 Dingyadi v. I.N.E.C (No. 2) (2010) 18 NWLR, pt. 1224, pg. 154. Arubo v. Aiyeleru (1993) 3 NWLR pt. 280, pg. 126 Adesanoye v. Adewole (2000) 9 NWLR, pt. 671, pg. 127 Vaswani Trading Co. v. Savalakh and Co. (1972) ALL NLR, pt. 2, pg. 483 Okorodudu v. Okoromadu (1977) 3 SC 21. — O.O. Adekeye JSC.
⦿ MOTION EXPIRES ON DATE SET FOR EXPIRATION
It is trite law that an order of injunction made by a court for limited application and specific duration becomes automatically discharged at the expiration of the period. — O.O. Adekeye JSC.
⦿ WHERE A PARTY HAS SEVERAL OPTIONS, HE COULD USE ANYONE HE WANTS
It is now trite law that where a party is by law given the option or discretion to exercise his right in different ways it is not for an opponent to prescribe the particular form the other party should utilize and where the form adopted by the other party is not what the opponent feels is the right course, then automatically an abuse of court process would be said to have taken place. There were options open to the respondent to tackle the scenario before him and he cannot be confined to the only choice of a counter claim to the appellant’s counter claim to ventilate his own grouse or grievance even though at the base is the same contract or facts since he had the alternative of bringing a fresh action so that all that he needs say would be brought to the fore. He had that right and he was at liberty to take it and did so. I have therefore no difficulty in flowing along with what the court of Appeal did as I see no error in their decision in upholding that the fresh action filed by the respondent was in order and the integrity of the court was not jeopardized. I refer to the case of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 170. — M. Peter-Odili JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Nwali Sylvester Ngwuta, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. A.C. Igboekwe.
⦿ FOR THE RESPONDENT(S)
Oluseye Opasanya.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
