7-UP BOTTLING CO. LTD. V. ABIOLA AND SONS LTD

Issue:

This appeal is an offshoot of another action with suit No. KWS/215/88. The facts leading to the action are that the plaintiff who is respondent in this appeal, took some banking facilities from the 3rd defendant for the purpose of its business. Following its failure to pay up the 3rd defendant, in purported exercise of its powers under the mortgage debenture deed between the parties, appointed the 2nd defendant a Receiver/Manager of the plaintiff. The 2nd Defendant, in the course of its duties as Receiver/Manager sold the plaintiffs factory to the 1st Defendant. The plaintiff went to court in Suit KWS/215/88 to challenge the acts of the Defendants. The plaintiff applied to the Court and obtained ex parte an interim order of injunction restraining the Defendants from selling plaintiff's properties in the factory pending the determination of the motion on notice for the substantive order of interlocutory injunction. While the interim order was still subsisting and notwithstanding the said order, a number of the plaintiff's properties such as vehicles and plants were sold by the 2nd defendant. The plaintiff brought committal proceedings for contempt which finally failed in the Court of Appeal in November 1990. Meanwhile, the plaintiff brought the present action before the Kwara State High Court claiming damages for its properties in the hands of the Receiver/Manager allegedly sold in violation of the order of interim injunction made in the original suit KWS/215/88, claiming a declaration in that the sale of its property by the Defendant was unlawful. Pleadings in the new action were filed and exchanged. The defendants in their joint statement of defence, pleaded by way of preliminary objection that the suit is incompetent having not complied with the condition precedent to the exercise of jurisdiction of the court and that same is an abuse of court process. The defendant subsequently filed an application requesting that the issues of law raised in their defence be set down for hearing and disposed before the trial. The learned trial judge heard argument from counsel to the parties and held in favour of the plaintiff that the action filed by the plaintiff was a claim or an action for conversion upon which the state High Court has unlimited jurisdiction by virtue of section 236(1) of the 1979 Constitution and also that the present case is dissimilar to the previously subsisting suit or suits and therefore not an abuse of the process of the court. The Defendants appealed to the Court of Appeal which considered the appeal only on one (1) issue of jurisdiction and ignoring other issues filed by the Defendants and found in favour of the plaintiffs, thereby affirming the judgment of the trial court. It is against this decision that the Defendants have further appealed to the Supreme Court.