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Alliance International Ltd. v. Saam Kolo International Enterprises Limited

Court of Appeal

Judgement delivered on Friday, May 14, 2010
Citation: 53 NIPJD [CA. 2010] L/147/2003
Suit No. CA/L/147/2003      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

ADAMU JAURO, J.C.A. (Delivering the lead judgement)
ADZIRA GANA MSHELIA, J.C.A.
RAPHAEL CHIKWE AGBO, J.C.A.

Appearances: Obiora A. Egwuatu (with Anne Dike and Uchenna Nwadialo) for the Appellant
Gani Adetola-Kaseem SAN (with Aisha Aremu Ogunlade) for the Respondent

Trademark Infringement, Effect of Design Registration, Concept and Definition of a Trademark as Distinguished from a Design — One of the main issues considered by the Court of Appeal was whether the Respondent’s trademark was covered by the certificate of design issued to the Appellant.

I. FACTS

The Respondent — Saam Kolo Enterprises, brought an action against the Appellant – Alliance International Ltd., seeking damages as well as an injunction for the infringement of two of the Respondent’s registered trademarks. The goods covered by the trademarks in question were shoe protectors described as “step”and “guard” registered in Nigeria by the Respondent on behalf of a foreign principal in 1990.

The Appellant on the other hand, claimed to have a certificate of registered design in respect of heel protectors also called “step”. At the institution of this action, there was a pending suit between the same parties at the instance of the Respondent before another Federal High Court, seeking for the nullification of the certificate of design issued to the Appellant and that suit was determined in favour of the Respondent.

The trial court found in favor of the Respondent. Dissatisfied, the Appellants filed an appeal. In delivering its judgment, the learned Justices of the Court of Appeal considered the concept and definition of a trademark as contra distinguished from a design and held that neither certificate is superior to the other but that they are issued for different purposes and serve different functions. The Court of Appeal also held that the Appellant’s contention that the use of the Respondent’s trademark was covered by its certificate of design was without merit.

The next question that comes to mind, is whether the possession of a certificate of design confers a right to use a mark registered by someone as trade mark. Learned counsel for the Appellant had submitted that a certificate of Design is superior to a certificate trade mark. I must state, that of the two certificates non is superior to the other, but that they are rather issued for different purposes or they perform different functions. The certificate of trade mark protects the integrity of the product while a design certificate protects the creativity in the design of the product. The action as constituted in the lower court is for the infringement of a trade mark and there was no counter claim by the Defendant now Appellant. By virtue of Section 5(2) of the Trade Marks Act, the rights accruable under the Act will be deemed infringed by any person who not being the proprietor or registered user, uses a mark or nearly resembling as to be likely to deceive or cause confusion in the course of trade in relation to any goods in relation to which it is registered. Consequently, the possession of certificate of Design does not confer the right to use a mark registered as trade mark. Consequently the contention of the appellant that the use of the Respondents trade mark was covered by a certificate of design is of no moment, this issue also fails.

II. FULL FACTS

This is an appeal against the judgement of the Federal High Court Lagos, Coram E.O.  Sanyaolu J, delivered on the 21st day of January, 2002.

The facts culminating in this appeal can be briefly stated as follows. The respondent as plaintiff contended that it had been marketing shoe protectors described as ‘Step’ and ‘Guard’ on behalf of its overseas principal since 1981 and got the protectors registered in 1990 as trade mark in Nigeria. The plaintiff alleged that the defendant now appellant infringed its trade mark ‘Step’ and ‘Guard’ in the production of shoe heel and sole protectors. The defendant denied the allegation, stating that at the time of the alleged infringement, it had a design certificate in respect of heel  protector ‘step’ and sole protector ‘step’ issued by the Registrar of Design in Abuja. At the institution of this action, there was a pending suit between the same parties at the instance of the respondents before another Federal High Court, seeking for the nullification of the certificate of design issued to the appellant and same suit determined in favour of the respondent. The respondent as plaintiff instituted this action and claimed against the appellant as defendant, for damages, injunction and other sundry reliefs based on the infringement of its trade mark by the defendant now appellant.

Pleadings were filed and exchanged and the case proceeded to full trial. The plaintiff called 4 witnesses styled PW1 to PW4 in support of its case and tendered an avalanche of documentary exhibits and some specimen ‘heel’ and ‘sole’ shoe protectors. The defendant called a single witness in defence and also tendered copious documentary exhibits. Upon the conclusion of hearing, both parties proffered oral addresses to the court. In its judgment, the trial court at page 130 of the record held thus:

“Having regard to all the circumstance of this case, I hold that the Plaintiff succeeds in his claim and I hereby make the following orders:

1. An order of perpetual injunction restraining the Defendant whether acting by its director, distributors, servants, agents or otherwise howsoever from infringing the Plaintiffs Registered Trade Marks Nos. 49624, 49625 and 49626 as tendered before me.

2. An award of W5.5 Million (Five Million and Five Hundred Thousand Naira) against the defendant in favour of the Plaintiff as general damages suffered by the Plaintiff as a result of the infringement.”

Dissatisfied with the judgment, the defendant filed an appeal against it anchored on eight grounds, pursuant to a notice of appeal dated and filed on 5th February, 2002. In compliance with the Rules of Court, parties filed and exchanged briefs of argument.

The appellant’s brief of argument was dated and filed on 25/1/06, while the reply brief was dated and filed on 5/3/09. Mr. Egwuatu for the appellant adopted and relied on both briefs in urging this court to allow the appeal with costs, and set aside the decision of the trial court. Learned counsel stated that they had filed a list of additional authorities and that 8 issues for determination were distilled from the 8 grounds of appeal. The respondents brief was dated 17/3/08, filed on 18/3/08 and by leave of court deemed properly filed on 25/2/09. Mr. Gani Adetola-Kaseem SAN for the respondent, adopted and relied on the said brief in urging the court to dismiss the appeal and award costs to the respondent.

The eight issues for determination as formulated by the appellant and adopted by the respondent, are as follows:

“1. Whether from the oral and documentary evidence tendered, the Plaintiff has established its locus in bringing this action as an agent of a United States based company called Traveller Products and Guard Manufacturing Company of St. Louis Missouri United States of America? (Ground 1)

2. Whether the formulation by the trial judge of an issue for determination different from the issue canvassed before him and proceeding to give judgment on it did result in a miscarriage of justice .(Ground 2).

3. Whether the failure of the trial Judge to follow the principle laid down in the case of Makinde v. Akinwale (1995) 6 NWLR Pt. 399 occasioned a miscarriage of Justice? (Ground 3)

4. Whether the trial Judge was right in awarding damages to the Plaintiff based on common law principles when the Plaintiff action was brought or based on statue i.e the Trade Marks Act Cap 436 Laws of the Federation of Nigeria 1990? (Ground 6)

6. Whether the trial Judge was right in holding that the Defendant admitted infringing the Trade Marks of the Plaintiff when the Evidence led and the pleadings of the Defendant did not admit such infringement? (Ground 7)

7. Whether Exhibits Q – Q2 and R – R6 were documents made in contemplation and during the pendency of the proceedings and whether without making a finding on the issue, the trial Judge was right in awarding special damages based on the Exhibits? (Ground 4)

8. Whether with regard to the totality of evidence before the court, the Plaintiff has established its case? (Omnibus Ground).”

The resolution of (his appeal will be based on the 8 issues stated above.

ISSUE 1

The complaint of the appellant under this issue, is a challenge on the locus of the respondent to have instituted the action.

Learned counsel for the appellant made reference to paragraphs 1, 1A, 1B, 1C, 2, 3 and 4 of the statement of claim to the effect that the respondent is an agent of a foreign principal. Learned counsel made further reference to paragraphs 2 and 3, of the statement of defence where the appellant denied the averments. Learned counsel argued that by Exhibits ‘B’ and ‘D’ and the oral evidence of PW1 and 3, the respondent did not show the legal authority or competence to maintain the action either in its name or for its principal. Learned counsel contends that he who asserts must prove. In support, reference was made to the following cases: R.E.A.N. Plc v. ANUMNU (2003) 6 NWLR (Pt.815) 52 at 99, Owoniboys Tech. Services Ltd v. Union Bank Nigeria Ltd (2003) 15 NWLR (Pt.844) 545 at 584. Learned counsel argued that the respondent having not shown the authority of its principal defence that it can be held a traverse in the statement of claim will be deemed admitted or established. In support, reference was made to Egbeide v. Osula (2004) 12 NWLR (Pt.866) 86 at 131 C-H. Learned counsel urged that the appeal be allowed on this point.

The complaint under this issue as earlier stated is that the plaintiff had not established by evidence that it is the agent of Guard Manufacturing Company and Travellers Products of the USA (hereinafter called the Principal). The contention of the respondent is that the agency relationship is deemed admitted by virtue of having not filed an amended statement of defence to counter the newly introduced paragraphs 1A, 1B and 1C. A holistic perusal of the statement of defence, will however show that issues have been joined in relation to the agency relationship between the respondent and its foreign principals. The submission of the learned senior counsel as to the admission of paragraphs 1A, 1B and 1C is of no moment and is hereby discountenanced. At the trial the plaintiff, through its PW1 and PW3 and exhibits ‘B’ and D, gave evidence concerning its being the accredited sole agent of the principal as averred in the statement of respondent’s witnesses and exhibits B and D, to the effect that they do not establish any agency between respondent and the foreign principals. I have carefully studied the two exhibits tendered namely B and D. Exhibit D is a letter from Guard Manufacturing Co. of St. Louis Missouri dated September 12, 1988 and addressed to Mr. Samuel Digba – Adekoya of Saam Kolo International Enterprises and the last paragraph of the letter stated thus:

  “we look forward to continuing a strong business relationship with your company …” See also exhibits G, H, H1 and H2. The contents of the aforementioned exhibits, particularly Exhibit ‘D’, have shown evidence of agency relationship between the plaintiff and its foreign principals. By way of passing, I wish to also observe that the action as constituted was for infringement of Trade Mark. The Trade Mark Certificates, exhibits E, El and E2 were in the name of the plaintiff I therefore do not see the wisdom behind the contention that the plaintiff lacks the locus to institute the action.

Issue one fails and is resolved in favour of the respondent.

ISSUE 2

The complaint of the appellant under this issue is that the lower court reformulated one of the issues and based its decision on the issue so formulated. Learned counsel contended that the case argued by the appellant was that at the time of instituting this action, there was a pending suit between the same parties before Jinadu J, hence making the new action an abuse of process, and not in whether the present action was an abuse in view of the judgment of Jinadu, J delivered on 27/5/94′. Learned counsel submitted that by formulating his own issue which is different from the one canvassed before him, the trial judge ended up giving a decision on an issue not canvassed before him, which has resulted in a miscarriage of justice. In support of this contention, reference was made by learned counsel to the following cases:

Adeniji v. Adeniji (1972)1 All NLR 298 at 303, R.E.A.N. Plc v. Anumnu (2003) 6 NWLR (Pt. 815) 52, Aiyetoro Comm. Trading Co. Ltd v. NACB Ltd 2003 12 NWLR Pt. 834 346 at 376, Ochonma v. Unosi (1965) NMLR 321, Chugbo Chemist Ltd v. Chugbo (1996) 5 NWLR (Pt.447) 246 A.G. Leventis (Nig) Plc v. Akpu (2007) 17 NWLR (Pt.1063) 416, Ukegbu v. NBC (2007) 14 NWLR (Pt. 1055) 551, Bhojsons Plc v. Daniel Kalio (2006) 5 NWLR (Pt.973) 330.

In his response, learned senior counsel for the respondent contended that, the court is at liberty and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties if in its view, such issues will not lead to a proper determination of the case. In support of this contention, reference was made to the following cases: Sha(Jnr) v. Kwan (2000) 8 NWLR (Pt. 670) 685, Fabiyi v. Adeniyi (2000) 4 NWLR (Pt. 662) 532.

Learned senior counsel argued that the implication of the admission by the appellant in his brief that, the learned trial judge in analysing address of parties, correctly reflected the argument of the appellant in his judgment is to effect that appellant has been heard on the issue formulated by the court. Learned senior counsel therefore posits, that there is no basis for any complaint. In support of this argument, reference was made to Kalu v. Uzor (2006) 6 NWLR (Pt. 981) 66 at 100. Learned senior counsel further submitted that in substance there is no real difference between the issue formulated by the appellant and that reformulated by the court. As a consequence of the foregoing, learned senior counsel argued that the reframing of the issue by the trial court has not resulted in miscarriage of justice, hence the complaint of the appellant should be discountenanced. In support reference was made to Union Bank of Nigeria Plc v. Ntuk (2003) 16 NWLR (Pt. 845) 183 at 203.

It is a settled position of the law, that a court has the power to adopt, modify or reframe the issues formulated for determination by the parties. The guiding principle is that issues formulated must lead to a proper determination of the dispute or grievance between the parties. See Sha v. Kwan (supra), Fabiyi v. Adeniyi (supra) and Ukegbu v. NBC (supra). In the course of reframing issues, a trial court should be careful not to make out a case for a party, different from that party’s case. As however long the arms of the law, they do not exist to twist what is not placed before the court. See Uchonma v. Unosi (supra) Adeniji v. Adeniji (supra) African Continental Seaways Ltd v. Nigeria Dredging Roads and General Works Ltd (1977) 5 SC 235 at 250 Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172. It should also be noted that there is a world of difference between reframing an issue for determination and raising a fresh issue by a court suo motu. Where a fresh point is raised, the parties must be heard on it. See A.G. Leventis (Nig) Plc v. Akpu (supra) and Bhojsons Plc v. Daniel Kalio (supra).

I have meticulously studied the two issues forming the complaint under this issue, namely the issue formulated by counsel as issue(a) on page 90 and the reformulated issue by the court as issue 2 on page 125 of the records. Both issues basically raised the question as to the competence of the 2 second suit now on appeal, in view of an earlier action between the same parties in Suit No. FRC/L/101/91 before Jinadu, J. The learned trial judge analysed the submissions of parties, made reference to relevant exhibits and held that the second suit as constituted does not amount to an abuse of court process as the issues are not the same in the two cases.

The learned trial judge held that the issue involved in the earlier suit was for the nullification of a Design Certificate, while the second action for infringement of trade mark.

In view of the foregoing, I am in total agreement with the submission of the learned is senior counsel, that there is no real difference in substance between the issue formulated by the defendant and the one reformulated by the court. Hence the reframing of the issue by the court has not occasioned any miscarriage of justice, the complaint of the appellant is therefore of no consequence and is hereby discountenanced. Issue two therefore fails and is resolved in favour of the respondent.

ISSUE 3

Learned counsel for the appellant argued that the failure to follow the principle in Makinde v. Akinwale (1995) 6 NWLR (Pt.399).1, has occasioned a miscarriage of justice. The principle in Makinde v. Akinwale, states that an order for stay of execution prevents the plaintiff or beneficiary of the judgment or order from putting into operation the machinery provided by law for the execution of a judgment or order. Learned counsel further stated that the purpose of stay of execution is to preserve the subject matter of litigation. See Dada v. International Tanners Ltd (2005) 11 NWLR (Pt. 936) 293.

Learned counsel stated that there was an order staying the execution of the judgment of Jinadu, J which nullified exhibits S and S1 (Certificates of Design). Learned counsel further argued that the implication of the order for stay of execution is that the appellant is entitled to the rights and privileges conferred by Exhibits ‘S’ and ‘S1’, and cannot therefore be said to have infringed the trade mark of the respondent. Learned counsel posits, that the judgment of the learned trial judge has put into operation the machinery provided by law for the execution of the judgment of Jinadu J, which has been stayed. In concluding, learned counsel submitted that failure to follow the principle in Makinde’s case has resulted in miscarriage of justice, hence urged this court to set aside the judgment.

In response, the learned senior counsel for the respondent submitted that the commencement of a new action is not a way to put into operation the machinery for the execution of judgment, for which clear provisions are made in the Sheriff and Civil Process Law. Learned senior counsel contended that the new action and the judgment given thereon which resulted in this appeal does not offend the principle in Makinde v. Akinwale. In support, reference was made to the case of Ajuwon v. Adeoti (1990) 2 NWLR (Pt. 132) 271 at 296. Learned senior counsel further submitted that a fresh action can only be barred where it is caught by the principles of res judicata, which is not the case in the present appeal. Learned senior counsel further argued that it is absurd for the appellant to object to the trial court giving judgment at the conclusion of trial in respect of which parties have been heard, on the spurious ground of having obtained an order for stay of execution in a previous case. The learned silk, urged this court to discountenance the submissions of appellant and resolve the issue in favour of the respondent.

The principle in Makinde v. Akinwale, has earlier been stated in this judgment. The order for stay of execution as in Exhibit ‘Y’, relates to the judgment of Jinadu, J in suit No. FRC/L/101/91 delivered on 27/5/94. The said judgment admitted as exhibit ‘W’, nullified exhibits ‘S’ and ‘S1’, the certificate of design issued to the appellant. The second action culminating in this appeal is on the infringement of the respondents trade mark. It is therefore entirely a new action with no nexus whatsoever to the previous action, where the order for stay of execution was granted.

As a fresh action, it can only be barred where it is caught up by the principles of res judicata which is not the position in the instant case. See Ajuwon v. Adeoti (supra). It is therefore wrong as contended by the appellant that the practical effect of the trial court’s judgment in favour of the respondent is to enable the respondent reap the fruits of the previous judgment for which order for stay of execution had been granted. This issue accordingly fails and is resolved in favour of the Respondent.

ISSUE 4

Under this issue, learned counsel for the appellant reproduced the reliefs claimed in the writ of summons and paragraphs 17 and 19 of the amended statement of claim. Learned counsel contends that it is trite that patties are bound by their pleadings and that a statement of claim where filed supercedes the writ of summons. In support, reference was made to the following cases. Idehen v. Osemweakhar (1997) 10 NWLR (Pt. 525) 358 at 372, Multi-Purpose Ventures Ltd v. A.G. Rivers State 1997 9 NWLR Pt.522) 642. Learned counsel further contends that where a special relief is claimed in the writ of summons, which is not claimed in the statement of claim, it will be deemed abandoned. In further support, reference was made to Arowolo v. Akapo (2003) 1 NWLR SC 190.

Learned counsel further contended that the claim in the writ of summons in respect of damages, was for a total sum of N5 Million for damages suffered by the plaintiff, while the claim in the amended statement of claim was for ‘Annual profits for 5 years N2.5 Million’ and ‘General damages N3 Million’. Learned counsel submitted that the court awarded N5.5 Million which was far above what the Plaintiff/Respondent asked from the court as general damages. Learned counsel further posits, that it is the duty of the court not to award any relief not claimed. In support, reference was made to the following cases: Chugbo Chemists Ltd v. Chugbo (1996) 5 NWLR (Pt. 447) 246, Ado Ibrahim & Co. Ltd v. B.C.C. Ltd (2007) 15 NWLR (Pt. 1058) 538 SC, Adeniji v. Adeniji (1972) 2 All NLR 298, NDIC VS. SBN Plc (2003) 10 NWLR (Pt. 801) 311, A.G. Ekiti State v. Daramola (2003) 10 NWLR (Pt. 827) 104 at 162 – 163. Consequent upon the foregoing submissions, learned counsel contended that the learned trial judge was not entitled to award the sum of N5.5 Million as general damages, when the plaintiff/respondent only claimed N3 Million as general damages. Learned counsel argued that the judgment is liable to be set aside on this point.

Arguing further on this issue, learned counsel contended that the respondent by its writ of summons, prayed for perpetual injunction restraining the defendant from infringing with registered trade marks Nos. 49624 and 49625. Learned counsel further contends that PW3 at page 67 of the record, prayed the court for an injunction to stop the defendant from infringing trade mark ‘step’ No. 49624 and 49625. Learned counsel argued that the trial court at page 130 of the record granted perpetual injunction restraining the defendant from infringing with trade marks Nos. 49624, 49625 and 49626. Consequent upon the pleading and the evidence of PW3, learned counsel argued that it was never the case of the Plaintiff/Respondent that an order of perpetual injunction be granted in respect of trade mark No. 49626. Learned counsel contended that the grant of injunction in respect of trade mark No.49626 which was not claimed nor asked for, is a nullity having been made without jurisdiction. In support, reference was made to the following cases: NDIC v. S.B.N. Plc (2003) 1 NWLR (Pt 801) 311 at 368 – 369, Ezenwere v. Ezenwere (2003) 3 NWLR (Pt. 807) 238, Oladipo v. Ayantunji 92003) 11 NWLR (Pt. 831) 418 at 434 – 435. Learned counsel submitted that this court should hold that,the trial court had exercised a discretion which it had no power to exercise, which resulted in a miscarriage of justice, hence urged this court to set aside the judgment.

In response, learned senior counsel for the respondent stated that the Plaintiff/Respondent claimed ‘as per its writ of summons’ in the amended statement of claim dated 13/10/94 at page 10 of the record. Learned senior counsel also reproduced the reliefs claimed in the writ of summons dated 11/3/93 as contained on page 3 of the record. Learned senior counsel argued that the plaintiff did not at any time amend its writ of summons, hence the reliefs contained therein remained extant throughout the proceedings. Learned senior counsel submitted that the particulars of damages contained in the body of the amended statement of claim was only inserted as required by the applicable Rules of court, but do not constitute the reliefs sought by the Plaintiff/Respondent. Learned senior counsel therefore argued, that there is no question of the relief sought in the statement of claim superceding those contained in the writ of summons. Learned senior counsel urged that all argument in the appellants brief based on the principle that reliefs contained in the statement of claim supercedes those in the writ of summons are irrelevant to the case in point and should be discountenanced.

Learned senior counsel conceded that it is correct that the award of N5.5 Million as general damages is in excess of N5 Million claimed by the Plaintiff/Respondent, so also the grant of perpetual injunction in relation to trade mark No. 49626 as outside the claim of the respondent. Learned senior counsel however submitted that the award by the court in excess of what was claimed by the Plaintiff/respondent is not sufficient to vitiate or nullify the entire award granted by the trial court. Learned senior counsel further submitted that this is a proper case for this court to apply its powers under Section 15 of the Court of Appeal Act, to amend the awards to be in line with the reliefs sought by the Plaintiff/Respondent. In support of this contention reference was made to the following cases: Harka Air Services Ltd v. Keazor (2006) 1 NWLR (Pt. 960) 160 at 194 – 195 (H-A), and Union Bank of Nigeria Ltd v. Odusote Bookstores Ltd (1995) 9 NWLR (Pi. 421) 558 at 586 – 587 (F-B). Learned senior counsel accordingly urged this court, to exercise its undoubted power under the aforementioned section to amend the award.

In a short reply on point of law, learned counsel for the appellant contended that paragraph 17 of the amended statement of claim contains the reliefs sought by the Plaintiff/Respondent.

Learned counsel further contended that the two cases cited are inappropriate in the circumstances of this case, as they do not relate to award of damages in excess of what was claimed.

Learned counsel further submitted that the instant case is not one of the appropriate cases in which the court of appeal will exercise its powers and amend the award. Learned counsel therefore urged this court to set aside the award and allow the appeal.

It is trite law, that in any civil proceedings, parties are bound by their pleadings and the statement of claim where filed supercedes the writ of summons. See Idehen v. Osemweakhar (supra) and Mult-Purpose Ventures Ltd v. A.G. Rivers State (supra). In the instant case the writ of summons was dated 11/3/93 at page 3 of the record and the amended statement of claim dated 26/6/94 at page 7 to 10 of the record. Paragraph 17 of the amended statement of claim particularized the claims of the plaintiff now respondent, while paragraph 19 of the amended statement of claim stated thus:

’19. Whereas the plaintiff claims as per its writ of summons’

Having stated in paragraph 19 of the amended statement of claim, that the plaintiffs claims is as per its writ of summons, it therefore means resort must be made to the writ of summons to determine what are the plaintiffs claim.

The claims of the plaintiff as contained in the writ of summons dated 11/3/93 at page 3 of the record is as follows:

“CLAIM

The Plaintiffs claim are for:

(i) A perpetual injunction to restrain the Defendant whether acting by its director, officers, distributors, servants, agents or otherwise howsoever from infringing registered trade mark No. 49624 and No. 49625.

(ii) N5M (Five Million Naira) against the Defendant for damages suffered by the Plaintiff.

(iii) Alternatively at the option of Plaintiff an account of profits made.

(iv) Such further or other relief as to this Honourable Court may seem meet (sic).”

The contention of the appellant to the effect that paragraph 17 of the amended statement of claim represents the claim of the respondent, cannot hold water in the light of paragraph 19 which categorically stated that the plaintiffs claims as per its writ of summons. The claims of the plaintiff, by virtue of paragraph 19 of the amended statement of claim are as contained in the writ of summons dated 11/3/93 reproduced above.

The writ of summons claimed for damages to the tune of N5 Million Naira and perpetual injunction to restrain the defendant from infringing registered trade mark No. 49624 and 49625. The learned trial judge in his judgment at page 130 of the record awarded N5.5 Million as general damages and perpetual injunction restraining the defendant from infringing trade marks numbers 42694, 42695 and 42696. The contention of the appellant as to the award of N5.5 Million as against N5 Million and perpetual injunction against trade mark number 42696 which was not asked for, amounted to a court awarding a relief not claimed and that a court of law has no power to award to a claimant what he did not claim or more than what he asked for. Learned counsel therefore urged on this basis that, the judgment be set aside.

It is indeed true and correct, that a court is not a Father Christmas, hence cannot award to party a relief which has not been asked for or claimed. See Chugbo Chemist Ltd v. NDIC (supra), Ndika v. Chiejina (supra) and NDIC v. S.B.N. Plc (supra). In the instant case however, it cannot be said that the plaintiff did not ask or claimed for damages and injunction. There was a claim for N5 Million damages and the court awarded N5.5 Million that is to say N500,000 in excess, and in the same vein there was a claim for injunction in respect of two trade marks and the court granted the injunction in respect of three trade marks including No. 42696 not claimed. Learned senior counsel for the responded conceded to this fact and contended that it should not be a ground for nullifying the entire award and urged that the court should apply Section 15 of the Court of Appeal Act and amend the award in line with reliefs sought. I am in agreement with the submissions of the learned senior counsel for the respondent that the award by the court in excess of what was claimed is not sufficient to vitiate or nullify the entire award granted by the trial court. It is an appropriate circumstance to invoke Section 15 of the Court of Appeal Act to amend the award in line with the reliefs sought. See Order 18 Rule 11(1) Court of Appeal Rules 2007 and Harka Air Services Ltd v. Keazor (supra), Mogaji vs. Mil. Adm, Ekiti State (1998) 2 NWLR (Pt. 538) 425, ULGC vs. Inwang (2010) 4 NWLR (Pt. 1185) 529 at 559 B-C. Consequent upon the foregoing, the N5.5 Million general damages awarded is reduced to W5 Million and the perpetual injunction made in respect of Trade Mark No. 42696 is also set aside. This issue partially succeeds and is partially resolved in favour of the appellant.

ISSUE 5

The appellant stated that the Plaintiff/Respondent’s suit was for alledged infringement of its trade mark, under the Trade Marks Act. Learned counsel submitted that it was contradictory for the learned trial judge at page 129 of the records to have anchored his judgment on the fact that at common law, it was not necessary for the Plaintiff/Respondent to prove that goods sold by the infringer were inferior to those to which the mark in question applies.

Learned counsel made reference to ‘Kerly’s Law of Trade Marks and Trade Names 10th Edition’ and submitted that the learned author at paragraphs 15-75, page 342 stated that ‘at common law the mere proof of an infringement entitles the plaintiff to nominal damages’ Learned counsel submitted that the award of N5.5 Million as general damages in a claim brought under the Trade Marks Act, could not have been an award for nominal damages.

Learned counsel further submitted that the learned trial judge applied the principles of common law instead of statutory provisions and having held that the plaintiff is entitled to nominal damages but proceeded to award general damages, the judgment ought to be set aside as it has resulted in miscarriage of justice.

In response, learned senior counsel for the respondent submitted that there is nothing in the Trade Marks Act which forbids a court from awarding general damages against a defendant who infringed plaintiffs trade mark. Learned senior counsel argued that the principle as to mere proof of infringement entitles the plaintiff to nominal damages was quoted out of context by the appellant. Learned senior counsel further submitted that the principle applies only to situation where all that the plaintiff has proved is an infringement of his trade mark and not to situations where plaintiffs offers evidence that he suffered losses as a result of the infringement. Learned senior counsel contended that the learned trial judge at page 129 found that on the issue of damages, the plaintiff’s witnesses gave evidence before the court on the loss of profit arising from the infringement committed by the defendant. Learned senior counsel further submitted that the general principle is that general damages are losses which flow naturally from the conduct of the defendant and its quantum need not be pleaded or proved as it is presumed by law to flow from the conduct complained of. In support, further reference was made to the case of Union Bank of Nigeria Ltd v. Odusote Bookstores Ltd (1995) 9 NWLR (Pt.421) 558 at 599 (C-D). Learned senior counsel further contended that in the circumstances of this case, the award of general damages by the learned trial judge was amply justified.

I have considered the submissions of both parties under this issue. I wish to start by an observation on the submission of learned counsel for the appellant. Learned counsel in his submission contended that the learned trial judge held that the plaintiff is entitled to nominal damages but proceeded to award general damages. I have meticulously perused the length and breadth of the judgment but cannot find the place where the learned trial judge held that the plaintiff is entitled to nominal damages. The contention is therefore misleading and is accordingly discountenanced. The contention of the appellant that the leaned trial judge applied the principles of common law when the action was based on Trade Marks Act, can not also be said to be correct. The learned trial judge at page 125 of the record stated thus:

“From the oral and documentary evidence proffered in the present case, I have no iota of doubt that the plaintiffs claim herein is for an infringement of his Trade Mark which stands to be governed by the Provisions of the Trade Mark Act Cap 436 L.F .N. 1990.”

The above statement speaks for itself. I am in agreement with the learned senior counsel for the respondent, that the appellant quoted out of context the principle “at common law the mere proof of infringement entitles the plaintiff to nominal damages”. General damages as awarded constitutes a relief and flows naturally from the conduct of the defendant and its quantum needs not to be pleaded or proved as it is generally presumed by law to flow from the conduct complained of. See Union Bank of Nigeria v. Odusote Bookstores Ltd (supra). This issue fails and is hereby resolved in favour of the respondent.

ISSUE 6

The contention of the appellant under this issue is that the trial judge was wrong to have held that the appellant admitted infringing the trade mark of the respondent. Leaned counsel for the appellant made reference to paragraphs of the statement of defence and the evidence of DW1, and contended that the appellant never admitted infringing the trade mark of the respondent but rather as at the time the appellant were producing, they were covered by exhibits S and S1 (Certificates of Design) authorizing then to use the word ‘Step’ and ‘Alinco’ on their products. Learned counsel argued that the trial judge never adverted his mind to Sections 19 and 20 of the Patents and Designs Act Cap. 344 CFN 1990 vis-a-vis Section 5(1) and 8 of the Trade Marks Act. In support, reference was made to the case of Uzokwe v. Densy Ind. (Nig) Ltd (2002) 2 NWLR (Pt. 752) 528. Learned counsel argued that the appellant cannot be accused of infringing a trade mark when it was exercising its rights and enjoying the priviledges conferred by registering its design and was issued certificate authorizing it to use the word ‘step’ and ‘Alinco’.

Learned counsel submitted that the finding that appellant admitted infringing the trade mark is perverse in the light of the pleading and evidence of DW1, hence counsel urged that the appeal be allowed on this point.

In response, learned senior counsel for the respondent made reference to paragraph 16 of the amended statement of claim and paragraph 8 of the statement of defence and contended that paragraph 8 of the statement of defence is not a denial of paragraph 16 but rather a justification for the use of the marks ‘Alinco’ and ‘step’. Learned senior counsel submitted that the claim of right to use ‘step’ and ‘Alinco’ because of being registered as a design is grossly misconceived. Learned senior counsel further argued that the right granted under Section 19(1) of the Patents and Designs Act is qualified by Section 19(2)(b) of the Act. Learned senior counsel contended that from the evidence, the products with marks ‘step’ and ‘Guard’ had been sold by the respondents since 1981.

Learned senior counsel further argued that the instant case was fought under the Trade Marks Act, as distinct from Patents and Designs Act and the defendant/appellant filed no counter claim. In short response, learned counsel for the appellant contended that paragraph 8 which expatiated paragraph 2 of the statement of defence is a complete defence to paragraph 16 of the amended statement of claim.

On this issue, this court invited parties on 19/2/10 to make further address as to the import of a certificate of Design vis-a-vis a Trade Mark Certificate on the product and the name. In his further address learned counsel for the appellant made reference to Sections 19 and 20 of the Patents and Designs Act and Sections 5 and 6 of the Trade Marks Act as to the rights and privileges of the holder of either Trade Mark Certificate or certificate of Design.

Learned counsel made reference to the following cases I. T. (Nig) Ltd v. B. A. T. (Nig) Ltd (2009) 6 NWLR (Pt. 1138) 577, Ferodo Ltd v. Ibeto Ind. Ltd (2004) 5 NWLR (Pt. 866) 317 and Densy Ind. Ltd v. Uzokwe (1998) 9 NWLR (Pt. 567) 569. Learned counsel made further reference to Section 12 of the Patents and Design Act and contended that a design certificate is superior to a trade mark certificate. Learned counsel made reference to Sections 5(4) 7, and 8 of the Trade Marks Act and contended that where trade marks resembling each other are registered, one cannot be said to be infringing the other. In support reference was made to the case of American Cynamide Ltd v. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt. 171)15. Learned counsel urged the court to allow the appeal. In his address, learned senior counsel for the respondent contended that the critical section of the law relevant is Section 19(2)(b) of the Patent and Design Act which removes protection if the product had been on sale. Learned senior counsel submitted that a trade mark is to protect the integrity of the product, whereas a Design Certificate is to protect the creativity in the design.

Learned senior counsel argued that the essence of a certificate of design is not an answer to a charge of infringing trade mark because the possession of a certificate of design does not confer the right to use a mark that has been registered as a Trade Mark.

Learned senior counsel posits, that the appellants are entitled to the protection of Design Certificate but they have not answered the claim of infringement of a Trade Mark. The registered design must also be new and original. In support of the submissions, learned senior counsel referred to Section 13(1)(2) and (3) of the Patents and Design Act and page 416, of the book ‘Intellectual Property, Law and Practice’ 1st Edition by F.O. Babafemi.

Learned senior counsel argued that the case of Densy Ind. Ltd v. Uzokwe (supra) is not applicable to this case as it was a case of two designs competing with each other. Learned senior counsel further argued that the other two cases cited are also not applicable to this case as they related to a comparison of two trade marks and ought to be distinguished. Learned senior counsel concluded by saying that mere possession of a certificate of design is not an answer to a claim for infringement of Trade Mark and hence urged that the appeal be dismissed.

Paragraph 17, now 16 of the amended statement of claim at page 9 of the record reads thus:

“16. Subsequent to the filing of this suit the Defendant has reverted to its own trade mark – ‘ALINCO’ and has been using this name at the back of its protectors but still using the Plaintiffs trade mark ‘STEP’ on the other side of the protectors. The Plaintiff will tender at the trial another set of shoe protector now being sold in the market by the Defendant which are all inferior and imitations of the Plaintiffs product.”

In response to the above averment, beside the general denial in paragraph 2 of the statement of defence, the defendant now appellant at paragraph 8 on page 12 of the record averred thus:

“8.With reference to paragraph 17 of the statement of claim the Defendant states that the names ‘ALINCO’ or ‘STEP’ were all duly registered under provision of Patents and Design Act of 1970 (Cap. 344 – Laws of the Federation) and Certificates accordingly issued thereof.”

The bond of contention now is whether by the state of pleadings and the evidence of DW1, the defendant had admitted infringing the trade mark of the plaintiff. The contention of the appellant is in the negative hence the finding of the trial court to that effect perverse, while the respondent on the other hand contended positively hence maintaining that the finding was supportable. In resolving this issue a consideration will be made on the legal effect of certificate of trade mark and that of design in relation to a product and its name. From the state of pleadings and the evidence, the defendant now appellant never denied the fact of producing shoe protectors with the mark ‘step’ and ‘alinco’, but they contended that there was a certificate of design which covered the products. See paragraph 8 of the statement of defence and the evidence of DW1 under cross examination at page 87 of the record. The certificate of design relied upon by the appellant is exhibit S and S1, which registered heel protectors ‘step’ and sole protectors ‘step’. The contention of appellant however is that at the time of usage of the names on the products, there was a certificate of Design covering the product. The respondents on the other hand contended having Exhibits ‘E’ – ‘E2’ certificates of Trade Mark in respect of ‘step’ and ‘Guard’.

To appreciate the issue under consideration, there is a need to revisit the two concepts namely Trade Mark and the Design Certificate as earlier stated and their legal implications. What then is a Trade Mark? A ‘trade mark’ is a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right either as a proprietor or registered user to use the mark. A ‘trade mark’ can also be defined as a distinctive picture which will indicate to a purchaser of an article bearing it the means of getting the same article in future by getting an article with same mark on it. See Ferodo Ltd v. Ibeto Industries Ltd. (supra), American Cynamid Co. v. Vitality Pharmaceuticals Ltd (supra) and International Tobacco. (Nig) Ltd v. B.A.T. Nig Ltd. (supra). See also Section 67 of the Trade Marks Act. Sections 5 and 6 of the Act, provides for the legal effect of registering a trade mark.

A design on the other hand, is any combination of lines or colours or both, and any three dimensional form whether or not associated with colours if it is intended by the creator to be used as a model or pattern or to be multiplied by industrial process and is not intended solely to obtain a technical result. See Section 12 of the Patents and Design Act and Densy Ind. Ltd v. Uzokwe (supra). The legal effect of registering a design is contained in Section 19 of the same Act.

The next question that comes to mind, is whether the possession of a certificate of design confers a right to use a mark registered by someone as trade mark. Learned counsel for the appellant had submitted that a certificate of Design is superior to a certificate trade mark. I must state, that of the two certificates non is superior to the other, but that they are rather issued for different purposes or they perform different functions. The certificate of trade mark protects the integrity of the product while a design certificate protects the creativity in the design of the product. The action as constituted in the lower court is for the infringement of a trade mark and there was no counter claim by the defendant now appellant. By virtue of Section 5(2) of the trade Marks Act, the rights accruable under the Act will be deemed infringed by any person who not being the proprietor or registered user, uses a mark or nearly resembling as to be likely to deceive or cause confusion in the course of trade in relation to any goods in relation to which it is registered. Consequently, the possession of certificate of Design does not confer the right to use a mark registered as trade mark. Consequently the contention of the appellant that the use of the respondents trade mark was covered by a certificate of design is of no moment, this issue also fails.

ISSUE 7

On this Issue, learned counsel for the appellant contended that exhibits Q – Q2 and R – R6 were documents made in contemplation and during the pendency of the suit, hence the court ought to have discountenanced them as having breached Section 91(3) of the Evidence Act. See High Grade Maritime Services Ltd v. First Bank of Nigeria Limited (1991) 1 NWLR (Pt. 169) 290. Exhibits Q – Q2 are statements of account for the years 1991 – 1993 while exhibits R – R6 are statements of accounts for the years 1989 – 1990 and 1994 – 1998. Learned counsel contended that he made copious submissions on the documents as to the fact of their freshness, not being dated, no tax clearance to confirm the contents, yet the court made no finding on the submissions but proceeded to award damages based on the exhibits. Learned counsel argued that it is trite that where an issue is placed before a court, the court has a duty to make a finding on the issue. In support, reference was made to the following cases:

Saleh v. Monguno (2003)1 NWLR (Pt. 801) 221 at 266 A-C, Bureau of Public Enterprises v. National Union of Electricity Employees (2003) 13 NWLR (Pt. 837) 382 at 409, State v. Ajie (2000) 11 NWLR (Pt. 678) 434 at 447, Irolo v. Uka (2002) 14 NWLR (Pt. 786) 225, Okonji v. Njokanma (1991) 7 NWLR (Pt.202) 131 at 150.

Learned counsel submitted that in situations such as the one at hand, the Court of Appeal or an appellate court has powers to make findings in the absence of one by the trial court. In support, reference was made to the case of R.E.A.N. Plc v. ANUMNU (2003) 6 NWR (Pt. 815) 52 at 97 – 98. Learned counsel contended that the trial court had abandoned the duty placed on it by law to decide on all issues and having failed to make a finding the said exhibits could not be relied upon in assessing special damages, hence the appellant has suffered a serious miscarriage of justice. Learned counsel urged that on this point too, the appeal be allowed.

In response learned senior counsel for the respondent contended that the objection as to the admissibility of the documents for breaching Section 91(3) of the Evidence Act, at this stage is belated and ought to be discountenanced. In support, reference was made to the following cases:

  Etim v. Ekpe (1983) 1 SC NLR 120, Omega Bank Nigeria Ltd v. O.B.C. Ltd (2005) 8 NWLR (Pt. 928) 547 at 577 H.

Learned senior counsel argued that PW 4 who tendered some of the exhibits and an employee of the firm of Chartered Accountants that prepared the exhibits, cannot be said to be a person interested in the case. Learned senior’ counsel made further reference to the evidence of PW 4 under cross examination on page 65 where he affirmed that the exhibits were not prepared when the case was in court. Learned senior counsel further submitted that exhibits Q – Q2 and R – R2 only established the claim of respondent to special damages and the trial court only awarded general damages not special damages. Learned senior counsel therefore argued that the exhibits in question did not affect the case either way and therefore occasioned no miscarriage of justice against the appellant.

In a short response, learned counsel for the appellant contended that they are not questioning the admissibility of exhibits Q – Q2 and R – R6, but rather the weight attached to it and the fact that no findings were made on the issues raised relating to the exhibits. Learned counsel contended that the court ought not to have attached any weight to the exhibits and that PW3, the Managing Director of the respondent who tendered exhibits Q – Q2 qualifies as a person interested.

The issue under consideration raises the application and interpretation of Section 91(3) of the Evidence Act and the weight attached to exhibits Q – Q2 and R – R6. The exhibits in contention are statements of account for Saam Kolo International Enterprises Limited, prepared by Olu Owoade & Co. a firm of chartered accountants. The exhibits are as follows:

Exh. Q – Statement for the year ended 31/12/91

Exh. Q1 – Statement for the year ended 31/12/92

Exh. Q2 – Statement for the year ended 31/12/93

Exh. R – Statement for the year ended 31/12/89

Exh. R 1 – Statement for the year ended 31/12/90

Exh. R2 – Statement for the year ended 31/12/94

Exh. R3 – Statement for the year ended 31/12/95

Exh. R4 – Statement for the year ended 31/12/96

Exh. R5 – Statement for the year ended 31/12/97

Exh. R6 – Statement for the year ended 31/12/98

The contention of the appellant is that copious submission were made to the effect that the documents were made in contemplation or during the pendency of litigation by a person interested, yet no findings were made on the exhibits and the trial court used same in awarding special damages.

Section 91(3) of the Evidence Act, Cap 112, Laws of The Federation of Nigeria 1990 provides thus:

“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

The aforementioned provision excludes the admissibility of statements made by person interested at a time when proceedings ‘ were pending or anticipated’, The emphasis is on ‘person interested’ and ‘during the pendency or anticipation of proceedings’. The exhibits were obviously made by Olu Owoade & Co, a firm of Chartered Accountants. The firm of Olu Owoade & Co, are not parties to the proceedings and have no nexus whatsoever to any of the parties to the proceedings. Consequently, the said exhibits cannot be said to have been made by a person interested in anticipation of litigation to have affected, the admissibility. See Apena v. Aiyetobi (1989) 1 NWLR (Pt. 95) 85 SC, High Grade Maritime Services Ltd v. First Bank of Nigeria Limited (1991) 1 NWLR (Pt. 169) 290, Anyanbosi v. R.T. Briscoe (Nig) Ltd (1987) 6 SC 15 and Gbadamosi v. Kabo  Travels Ltd (2000) 8 NWLR (1)Pt. 668) 243.

The learned counsel for the appellant contended that the complaint is not against admissibility but weight attached to it.

Learned counsel contended that the learned trial judge relied on the exhibits to award special damages. I wish to observe at this point and contrary to the submissions of learned counsel, that the learned trial judge never awarded special damages but general damages.

Hence, on this point I am in agreement with learned senior counsel for the respondent, to the effect that any weight attached to the exhibits has not occasioned any miscarriage of justice. This issue also accordingly fails.

ISSUE 8

On this Issue, learned counsel for the appellant mainly reproduced arguments in relation to issues earlier argued. Learned counsel contended that respondent had failed to establish being an agent of a foreign principal and that the exhibits tendered and the oral evidence of PW1 and PW3 did not in any way link the appellant with the said infringement. Learned counsel further raised the issue of damages and adopted arguments earlier made on issue 4 on damages. Learned counsel urged the court to allow the appeal.

In his response, learned senior counsel for the respondent contended that the omnibus ground upon which this issue is distilled presupposes that upon totality of evidence, judgment ought not be in favour of respondent. In support, reference was made to the following cases: Odofin v. Mogaji (1978) 11 NSCC 275 and Guardian Newspapers Ltd v. Ajeh (2005) 12 NWLR (Pt. 938) 205 at 221 F.G. Learned counsel submitted that the arguments proffered on this issue are re-argument of other issues already raised in the earlier issues distilled from the grounds of appeal. Learned senior counsel contended that the practice of rearguing earlier issues under the omnibus ground is not a permitted practice. In support reference was made to the case of Umanah v. Attah (2004) 7 NWLR (Pt. 871) 63 at 87 – 88. Learned senior counsel urged that the submission that the judgment is against the weight of evidence be rejected and the appeal dismissed.

The arguments raised under this issue are a summary of arguments made in respect of the earlier issues. As the issues had been resolved one way or the other, it will be a needless repetition to go over them again under the issue distilled from the omnibus ground. The omnibus ground of appeal is not supposed to be a parlance for re-arguing issues earlier argued or canvassing the issue of damages. The omnibus ground of appeal is therefore not at large, but it is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document and it cannot be used to raise any issue of law or error of law. See Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) 22, Akinlogun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60. The argument proffered under this issue being a re-argument of earlier issues is hereby discountenanced and the issue fails.

In view of the resolution of issue 4 partially in favour of the appellant, the appeal partially succeeds in relation to injunction and damages. The appeal is hereby allowed in part. I hereby invoke Section 15 of the Court of Appeal Act and vary the orders made in the judgment of the lower court delivered on 21st January, 2002, as follows:

  1. The order of perpetual injunction restraining the defendant/appellant in respect of Trade Mark No. 42696 is hereby set aside.
  2. An award of W5 Million general damages is hereby made in place of the N5.5 Million award by the lower court.

There will be no order as to costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I have had the privilege of reading in draft the judgment read by my learned brother JAURO, J.C.A. and I agree with him completely. The judgment is very exhaustive, covered all the issues, and there is nothing useful for me to add. I abide by all the orders contained in the lead judgment.

ADZIRA GANA MSHELIA, J.C.A: I have read in draft the judgment just delivered by my learned brother, Jauro, J.C.A. I also agree that the appeal should partially succeed.

My learned brother had meticulously treated all the issues raised by the appellant for determination in this appeal. I only wish to add few words for the purpose of emphasis. I would comment briefly on issue 4. By paragraph 19 of the amended statement of claim, Plaintiff sought for the relief thus:

’19, Whereas the Plaintiff claims as per its writ of summons’.

It is trite law and very elementary that the plaintiff is bound by the case put forward in his writ of summons. The authorities in point are: Commissioner for Works, Benue State v. Devcon Development Consultants Ltd. (1988) 3 NWLR (Pt.83) 407 at 420; Ayanboye v. Balogun (1960) 5 NWLR (Pt.151) 392. The Plaintiff/Respondent in the writ of summons dated 11/3/93 appearing at page 3 of the record asked for five million naira as damages but the trial judge awarded N5.5 million as general damages. Although statement of claim supercedes writ of summons, the wording of paragraph 19 of the amended statement of claim is clear and unambiguous. It was therefore wrong for the trial judge to award the N500, 000.00 excess as damages. It is trite law that a court will not grant a relief not claimed by a Plaintiff. See: Oscar CF & S Ltd. v. Ogunleye (2008) 17 WRN 161.

For the above reasons and the more detailed reasons given in the lead judgment, I too allow the appeal in part and endorse all the consequential orders made therein, cost inclusive.

Note:

This case established the principle that the mere existence of a design registration is not a justification for the use or infringement of a trademark belonging to a third party.

III. OTHER CITATIONS

(2010) 13 NWLR (Pt.112) C.A. 270

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