From the Court



Judgment Delivered


Suit No: SC29/2006


R-Benkay Nigeria Ltd



Cadbury Nigerian Plc

Date Delivered: 2012-03-23


Ibrahim Tanko Muhammad, Olufunlola Oyelola Adekeye, Bode Rhodes-Vivour, Nwali Slyvester Ngwuta, Mary Ukaego Perter-Odili

Judgment Delivered

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 N5,108,210.30 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 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 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 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).

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 over-ruled 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

1. 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 was the res in the appellant’s pending counter-claim in Suit No10/749/97 constitutes an abuse of Court process. 

2. 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 an abuse of Court process. 

3. 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 10/999/2000 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 counterclaim 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 ID/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 counter-claim 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 (Part 280) page 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 (Part 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 (Part 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.


A. C. Igbokwe …… For the Appellant

O. Opasanya …… For the Respondent

with him

Dr. Ehiwere

T. Raji

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