‘Injunction obtained by misrepresentation liable to be discharged’

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 […]

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”
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-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).

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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:
 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 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.
Learned Counsel urged the court to endorse the decision of the lower court that Suit No ID/999/2000 does not constitute obtained a fresh order of mareva injunction in this suit permitting it to detain the said 30 tonnes trailer.
As stated earlier the appeal to the Court of Appeal was dismissed hence the present appeal to this court with the appellant filing eight grounds of appeal.

On the 24/1/12 date of hearing, Mr. A. C. Igbokwe, learned counsel for the appellant adopted the brief of appellant filed on 2/8/07 in which were framed three issues for determination viz:
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 trailer was the res in the appellant’s pending counter claim in Suit No ID/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 circumstance of this case the order of mareva injunction dated 20th April, 2000 ought to be discharged.
The respondent’s brief settled by learned counsel on their behalf, Oluseye Opasanya was adopted by counsel. In the brief were couched two issues for determination as follows:
(a) Whether the institution of suit No. ID/999/2000 by the respondent constitutes an abuse of court process, and
 (b) Whether the lower court was right in refusing to discharge the order of mareva injunction granted by the High Court
The issues as framed by the respondent are simpler and convenient to use.
In answering the questions raised in the two issues of the respondent, that is if there had been an abuse of court process when the respondent obtained the mareva injunction during the pendency of the appellant’s counter claim, the learned counsel for the appellant stated that by the filing of this suit and obtaining an ex-parte order of mareva injunction permitting it to detain the appellant’s 30 tonnes trailer the respondent overreached the appellant and unlawfully interfered with the res in the Suit No ID/749/97. That it is now trite law that abuse of court process means that the process of court has not been used bona fide and properly which is what has taken place herein.
Mr. Igbokwe of counsel further stated that this new suit instituted by the respondent could have been conveniently determined in Suit No ID/749/97 as the subject matter, the parties and the claims are exactly the same. That the only reason why the respondent instituted this new action is to prevent the appellant from enjoying the fruits of its litigation in its counter claim in Suit No ID/749/97. He said that it is now trite that a counter claim is an independent action whereby the defendant in the main suit is the plaintiff and in the counter claim is the defendant. That Order 19 Rule 16 of the High Court of Lagos State Civil Procedure Rules 1994 provides that the two claims can be taken together and the party in whose favour is the balance would have judgment. He cited NAL Merchant Bank Plc v Onu (2001) 5 NWLR (Part 705) 11; Ogbonna v A. G. Imo State (1992) 1 NWLR (Part 220) 647 at 675; Ijale v A. G. leventis & Co. ltd (1965) 4 NSCC 132 at 134.
For the appellant was canvassed that there is concealment and or misrepresentation as the respondent is averring that the Suit No ID/749/97 had abated, that if the trial court had been aware of the true state of affairs it would not have granted the mareva injunction against the same res as that in the pending counter claim.
Also that the respondent’s claims in Suit No ID/999/2000 is a claim for value of lost goods consigned by the respondent to the appellant sometime in 1996 whilst, the appellant’s counter claim in Suit No ID/749/97 is compensation for detinue arising from an alleged unlawful detention of its trailer by the respondent between 13th November 1996 and March 1997 when Hon. Justice A.O. Holloway made the ex-parte order. That it is an established principle of law, that where a party is by law given the discretion to exercise his rights in different forms, it is not for the other party to insist on the adoption of a particular form.
He said suit No ID/999/2000 was not filed to harass and annoy or oppress the appellant but was filed in bona fide exercise of the respondent’s right of action.
Mr. Opasanya of counsel submitted that even if there had been non-disclosure of a material fact, it was neither deliberate nor intended to overreach the appellant but done in the honest belief that the undisclosed fact was immaterial and hence had no bearing on the application for mareva injunction and the custodial orders. He cited Ali & Fald Shobokshi Group v Moneim (1989) 1 WLR 710; Behbehani v Salem (1989) 1 WLR 723 at 728.
 In reply on points of law based on the appellant’s reply brief filed on 31/3/08, learned counsel on his behalf submitted that, the respondent having not appealed against the said judgment of the Court of Appeal cannot be heard to argue as it has attempted to do. That the respondent having not cross-appealed in this appeal is bound by the decision of the Court of Appeal that the mareva injunction in this suit relates to the ex-parte order for the detention of the appellant’s 30 tonnes trailer at the
High Court premises Ikeja Lagos by the trial court on 20th April. He referred to Oshodi v Eyifunmi (2000) 13 NWLR (Part 684) 298; Sotuminu v Ocean Steamship Nigeria Limited (1992) 5 NWLR (Part 239) 1.
The different positions taken by the parties crystallise into whether or not in the channel of seeking the enforcement of his perceived right, the respondent had not entered the arena of abuse of court process. In resolving, the question therefore, it must be stated that whether or not the subject matter in a suit is the same as that of the counter claim in Suit No ID/749/97 is not automatically arrived at based on the deposition of any of the parties or both of them and no more. The correct position is that it is to be resolved in the judicial exercise of the courts based on the analysis and evaluation of the evidence before them.
In that regard even if the respondent had not countered or contradicted the averments by way of a counter affidavit it would not change the fact and remove from the court the power of evaluation of evidence available. This in effect means that it is not a fait accompli that once there are averments in affidavit which are not contravened, the result would be a favourable disposition to the position of the party who had proffered the disposition. This is so because all averments must go under the surgical knife of evaluation which is done by the court as a matter of duty to see to its acceptability as happened in this case. I refer to Gonzee (Nig.) Ltd v NERDC (2005) 13 NWLR (Part 943) 634 at 638.
 In this case the main grouse of the appellant is that the respondent ought not to have filed a fresh suit instead of filing a counter claim to appellant’s counter claim. In that view point is anchored the abuse of process which appellant touts. 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 therefore. 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 (Part 264) 156 at 170.
On the allegation by the appellant that there was material non-disclosure which precipitated the High Court affirmed by the Court of Appeal on the grant of the injunction, the point has to be made that where a party seeking and obtaining an injunction including a mareva one as in this instance fails to disclose some facts or had made some misrepresentation in the course of the grant of the injunction, such an injunction on the realization of the non-disclosure or misrepresentation has to be discharged. That is the general principle while the rider is that the non-disclosure or misrepresentation must be material and of a nature which had propelled the hand of the court in the grant of the injunction. If that is not the case then such non-disclosure or misrepresentation or error would not change the situation nor force the discharge of the injunctive order. In this case the appellant had put forward that there were non-disclosures which produced a disadvantage on their part. This is not shown by the concurrent findings of the two courts below and there being no miscarriage of justice or any error in those findings, this court has no business in forcing its way by interfering with those findings which those courts had said the alleged undisclosed facts were not material. I place reliance on the following cases: Amadi v NNPC (2000) 10 NWLR (Part 674) 76; Globe Fishing Industries Ltd v Coker (1990) 7 NWLR (Part 162) 265 at 297; Ogoejeofo v Ogoejeofo (2006) 1 SC (Part 1) 157.
From the foregoing and the fuller reasons in the leading judgment of my learned brother, Nwali Sylvester Ngwuta JSC, I too dismiss this appeal.
Counsel
A.      C. Igbokwe …… For the Appellant
O. Opasanya …… For the Respondent
with him
Dr. Ehiwere