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Beijing Cotec New Technology Corp. & Anor v. Greenlife Pharmaceuticals Ltd. & 5 Ors.

  Federal High Court

Citation: 46 NIPJD [FHC. 2003] 718/2003
Suit No. FHC/L/CS/718/03      Jurisdiction: Nigeria
September 12, 2003

Judgement delivered by Justice Mohammed Shuaibu, J.

Appearances: Professor Olawoyin (SAN) and Dr. Sodipo for the Plaintiff
Bayo Ojo (SAN) for the 1st-5th Defendant
Mr. Oyeyipo for the 6th Defendant

SUMMARY OF FACTS

The Plaintiffs/Applicants — Beijing Cotec New Technology Corp. and Churchbells Pharmaceuticals Ltd., filed an ex parte motion against the Defendants — Greenlife Pharmaceuticals Co. Ltd., its four officers, who marketed the anti-malaria drug, Alaxin, and the National Agency for Food and Drug Administration and Control (NAFDAC).  The action was brought against NAFDAC for approving the sale of “Alaxin”, an anti-malaria drug that contains dihydroartemisinin.

Churchbells Pharmaceuticals alleged that it had the sole right to import and sell anti-malaria drugs containing dihydroartemisinin in Nigeria. A Federal High Court in Lagos presided by Justice C.P.N. Senlong ruled that the Plaintiffs/Applicants were the owners of registered patent No.13566 and issued an ex-parte order restraining Greenlife Pharmaceuticals Limited and its agents from making, importing, or selling of the anti-malaria drugs “Alaxin” pending the determination of the Motion of Notice for Interlocutory Injunction filed on July 23, 2003, brought by Churchbells Pharmaceuticals. The court also ordered Churchbells Pharmaceuticals to enter an undertaking as to damages should it turn out that the application ought not to have been granted.

Following the ruling, which permitted the Plaintiffs/Applicants to break open any premises where products of the subject matter of the dispute was being kept, for the purpose of obtaining relevant evidence of patent infringement, Churchbells together with a police inspector, three court bailiffs and five lawyers invaded the premises of Greenlife Pharmaceuticals at Ilupeju, Lagos where they carted away all products and sales materials pertaining to Alaxin.

At the Federal High Court, in a suit presided by Justice Mohammed Shuaibu, the ex-parte order restraining Greenlife Pharmaceuticals Limited, and five others from making, importing, or selling of anti-malaria drugs, Alaxin, which is manufactured from Dihydroartemsinin was vacated.

The court also turned down the request by Beijing Cotec New Technology and ChurchBells Pharmaceuticals Nigeria Limited, that the interim order granted earlier be converted to interlocutory injunction, restraining the defendants from making, importing, selling, or using a drug which has Dihydroartemisinin as its active ingredient, pending the final determination of the suit.

FULL CASE

ISSUES

1. Whether pre-action notice as contained in Section 26(1) of the National Agency for Food and Drugs Administration and Control (NAFDAC) is constitutional.

2. Whether the Plaintiff/Applicant has made out a case that would warrant the granting of the interlocutory injunction sought.

The Plaintiff had earlier been granted an interim Anton Pillar Order against the 1st – 5th Defendants on July 23, 2005. This ruling was sequel to applications brought by the 6th Defendant (NAFDAC) on one hand and the 1st – 5th Defendants on the other hand.

The 6th Defendant’s application is dated August 8, 2003 and it is a notice of preliminary objection seeking an order striking out the name of the 6th Defendant from Suit No. FHC/L/CS/718/2003 dated and filed on the July 23, 2003.

The ground for bringing the application was that the Plaintiffs did not comply with Section 26(1) of the National Agency for Food and Drugs Administration and Control Decree No. 15 of 1993 which requires that before any proceedings can be commenced against the 6th Defendant a 30 days notice of intention to commence the proceedings should be to the Agency (NAFDAC).

The next application was brought by the 1st – 5th Defendant. The application sought the following:

1. AN ORDER extending the time within which to apply to set aside the interim orders of the Honorable Court given in this suit on July 25th, 2003.

2. AN ORDER setting aside and discharging the interim orders aforesaid in paragraphs 1, 2, 3, 4, 5, 6, 7 and 9 especially paragraph 3 of the said order of this Honourable Court made against the Defendants/Applicants on July 25th, 2003.

3. Such further or other Orders as the court may deem fit to make in the circumstances.

The grounds for the application were:

i. Suppression and misrepresentation of material facts pertaining to the registration of Patent No RP 13566.

ii. Paragraph 3 of the said interim order is a substantial relief.

iii. The Plaintiffs/Respondents did not comply with the mandatory provisions of the National Agency for Food and Drugs Administration and Control Act, 1993.

The 3rd application is brought by the Plaintiffs seeking for:

1. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Defendants herein; whether acting by themselves, or through their directors, officers, servants, agents, privies or howsoever, otherwise from infringing the Plaintiffs patent in the compound DIHYDROARTEMISININ by producing, causing any other person to produce, importing or distributing by way of trade or offering for sale or storing any anti-malaria drug which has active ingredient DIHYDROARTEMISININ without the consent of the Plaintiffs who are the owners of the Patent pending the trial of this action.

2. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances. The Motion is supported by 13 paragraphs affidavit sworn to by FEMI ADESOLA; a Solicitor in the Firm of Chief G.O. Sodipo & Co., Solicitors to he Plaintiff. Attached to the Motion are the ten Exhibits and also a 9 paragraphs affidavit of urgency deposed to by the same deponent.

Section 26 of the National Agency for Food and Drugs Administration Control Decree No. 15 of 1993 provides that:

“No suit shall be commenced against the Agency before the expiration of a period of one month after written notice of intention to commence the suit have been served on the Agency by the intending Plaintiff or his agent and the notice shall clearly and explicitly state:-

a. The cause of action

b. The particulars of Claim

c. The name and place of abode of the intending Plaintiff and

d. The relief which he claims.

2. The notice referred to in subsection (1) of the Section states that:-

any summons; notice or any other document required or authorised to be served on the Agency under the provision of this Decree or any enactment

b) sending it by registered post addressed to the Director General at the Head Office of the Agency”.

Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 provides

“In the determination of civil rights and obligations, including any question or determination by or against any government or authority; a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal by law and constituted in such a manner as to secure its independence and impartiality”.

Held: Granting applications of the 1st – 6th Defendants while refusing the Plaintiffs application)

1. Uncontroverted averments:

Any uncontroverted averments are deemed admitted.

2. Mandatory Nature of Pre-action Notice:

Where the law requires that a pre-action notice should be given failure to give the notice will render the action incompetent. (Rekitt & Colman v. Gongoni (2001) 8 N. W.L.R. (Part 716) 592 at 609 Paras. E – H; Mobil Producing Nigerian Unlimited v. Lasepa (2002) 18 N.W.L.R. (Part 798) 1 at 30 referred to).

3. An exparte application is made where there is a very urgent need to induce the court to abridge the procedure in admitting an issue or matter which must of necessity and having regard to the nature of the matter be attended to there being an apprehension that failure to resort to such procedure will be fatal. Such an application should neither be resorted to at the mere whims of the Applicant when the situation does not call for it nor should the Court grant it as a matter of course where there if nothing to show that chaos will result in not resorting to this procedure. (Guardian Newspapers Ltd. v. A. G Federation (1995) 5 N.W.L.R. (Part 398) 703, 730- 731 referred to).

4.Court faced with motion for discharge of Interim Order and Interlocutory Injunction:

Where a party moves the court to discharge an order of interim injunction made against him and there is also motion for interlocutory injunction the normal practice is to take the two applications together. (Efiom v. Ironbar (2000) 3 N. W.L.R, (Part 650) 454 at 556 referred to).

5. Findings on substantive action in an Interlocutory Application: On an application in limine, the court should refrain from making some findings which might prejudice the merits of the substantive action. (Ojukwu v. Governor of Lagos state (1986) 3 N.W.L.R. (Part 26) 39 at 45 referred to).

6. The Interlocutory Injunction:

(i) It is not enough for an Applicant in an application for an order of interlocutory injunction to say that he has a legal right or interest to be protected, he must go further to establish irreparable damage and that only an order of injunction can be adequate remedy.

(ii) It is not in every case where there is or are friable issues that an interlocutory injunction must be issued or made. If monetary compensation is adequate injunction will be refused. (Ayo-Ayodele Pham Chem. Nig. Ltd v. NDIC (2000) 4 N. W.L.R. (Part 653) 420 at 435 – 436; Union Beverages Ltd. v. Pepsi Cola Int. Ltd (Part 330) I referred to).

7. Patent:

Patent is grant of a right to exclude others from making; using or selling ones invention and includes right to licence others to make use of or sell it. To be patenable therefore, a device must embody some new idea or principle not known before and it must be a discovery as distinguished from mere mechanical skill or knowledge.

8. Interlocutory Injunction and Patent:

The grant of interlocutory injunction in actions for infringement of patents is governed by the same principles as in other actions and therefore sufficient facts must be made available to the Court to determine whether to grant or refuse the injunction sought.

9. Balance of Convenience

In considering balance of convenience the Court is guided by the following factors:

i. The degree to which the Plaintiff and the Defendants are successfully established in business. In other words, loss of market share during the period before trial may be so great as may be unquantifiable in damages.

ii. Whether the Plaintiff or Defendant lacks financial ability to meet with any ultimate liability in damages against him.

iii. Unnecessary delay on the part of the Plaintiff will work against the Plaintiff and will shift the balance of convenience in favour of the Defendant.

10. Injunction:

Since the grant of interlocutory injunction is not a matter of course or routine slavishly following the grant of an interim injunction, it is not granted to compensate a Plaintiff in the interim for merely initiating an action or because a Plaintiff has a relief of perpetual injunction in his claim. Thus, a trial Judge should treat the application before him purely on its merits and give decision on facts before him.

SHUAIBU, J.: This is sequel to three distinct applications jointly taken together with consent of both parties. However, I intend to begin with the Notice of Preliminary Objection of 8th day of August, 2003, filed for and on behalf of the 6th Defendant NATIONAL AGENCY FOR FOOD AND DRUGS ADMINISTRATION AND CONTROL.

The application is for an order striking out the name of the 6th Defendant from Suit No. FHC/L/CS/718/2003 dated and filed on the 23 rd day of July, 2003. The ground for bringing the application is that the Plaintiffs have not compiled with Section 26(1) of the National Agency for Foods and Drug Administration and Control Decree No. 15 of 1993 which requires that before any proceedings can be commenced against the 6th Defendant/ Applicant herein a 30 day notice of intention to commence the proceedings should be given to the Agency.

In support of the Motion is an 8 Paragraphs affidavit deposed to by one MAL MOHAHMED BABA; a Senior Legal Officer in the 6th Defendant’s employment. The main substance of the Applicant’s case as can be glossed from the affidavit evidence is that the Plaintiffs have caused a Writ and Statement of Claim on 23rd July, 2003 and that the Plaintiffs did not give the requisite pre-action notice to the 6th Defendant/Applicant.

Arguing the Motion on Preliminary Objection on behalf of the 6th Defendant/Applicant; the leading Counsel Mr. Oyeyipo submitted that the 6th Defendant is a creation of a statute and by virtue of Section 26(1) of the National Agency for Food and Drugs Administration and Control Decree No. 15 of 1993, suit can only be commenced against the Agency after the expiration of one month written notice of intention to commence same shall have been served. The operative word used is “shall”.

It was further submitted that since none of the Respondents filed any counter affidavit, affidavit are deemed admitted and on the strength of that the Reference was made to Mobil Producing Nigeria Unlimited (Part 798) 1 at 30.

Responding to the argument on the issue of failure to serve pre-action notice on the 6th Counsel on behalf of the Plaintiffs Dr. Sodipo identified 3 exceptions pre-action notice and these are:

i.  Where a Corporation is being counter claimed against by the Defendants are sued against the Corporation. He referred to NPA vs. Construzioni Generali Farsura Coge-far Spa & Ahor (1974) I ALL NLR (Part 2) 463.

ii. Where the statutory requirement of notice regulates the right of access to the Court in a manner to constitute an improper obstacle to access to Court. this exists it will undoubtedly infringe Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. Concluded the Learned Counsel. refers to Amadi vs. NNPC (2000) 10 NWLR (Part 674) 76 ratio 1.)

iii. Where the purpose is to catch the Defendant by surprise and prevent them from hiding and or destroying the evidence that is, Anton Pillar. In this situation, pre-action notice according to Dr. Sodipo is unconstitutional because it has the effect of depriving the injured party from stopping the act of the alleged injury and obtaining relevant evidence to prosecute his case. Copious references were made to the affidavit evidence and the books of BABALOLA ON INJUNCTIONS AND ENFORCEMENT OF ORDERS Page 130 and PIRACY AND COUNTERFEITING GATT TRIPS written by the Learned Counsel Dr. Sodipo at Page 163.

It was finally submitted that pre-action notice is meant to give a corporation such as the 6th Defendant time so as to make reparation and where irreparable damage or be done to Plaintiff’s right during the one month period of pre-action; it became unconstitutional.

Submitting on behalf of 1st and 5th Defendants, the Learned Counsel Mr. Azubuike aligned with the submission of the Applicant also contended that from Exhibit 5 of the in support of the Motion of 23/7/03 also mentioned at paragraph 5 therein, It is ample time and opportunity to give the pre-action notice.

It was further submitted on behalf of the 1st and 5th Defendants that their fate is tied to that of the 6th Defendant. Once the 6th Defendant’s name is struck out, their names too

It is pertinent to before delving into the constitutionality or otherwise of the pre-action notice to reproduce Section 26(1) of the National Agency Food and Drugs Administration and Control Decree No. 15 of 1993 which states:-

“Section 26(1) No Suit shall be commenced against the Agency before expiration of a period of one month after written notice of intention to commence the suit have been served on the Agency by the intending Plaintiff or his agent and the notice shall clearly and explicitly state:

a. The cause of action.

b. The particulars of Claim.

c. The name and place of abode of the intending Plaintiff.

d. The relief which he claims.

(2) The notice referred to in Subsection (1) of the Section states that any summons notice or any other document required or authorised to be served on the Agency under the provision of this Decree or any enactment or Law may be served on:

a. delivering the same to the Director General; or

b. sending it by registered post addressed to the DirectorGeneral at the Head Office of the Agency”.

Thus, an intending Plaintiff commencing an action against the 6th Defendant is required by virtue of Section 26(1) and (2) of Decree No. 15 of 1993 to fulfill the following conditions:

i. Give one month written notice of his intention to commence the action;

ii. The said notice of intention to commence the suit must be served on the Agency by either the intending Plaintiff or his  iagent; and

(iii) The notice to commence the suit shall contain the particulars stated in Subsection (1) above.

I have earlier stated that nope of the Respondents controverted the Applicant’ s averments that no pre-action notice was issued to the 6th Defendant and I have no hesitation in holding that same is deemed admitted.

The next issue to be considered is whether or not Section 26(1) of National Agency for Food and Drugs Administration and Control (NAFDAC); Decree No.  of 1993 is a contravention of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.

The said provision of Section 36(1) provides that:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority; a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality”

It is settled that fair hearing includes right of access to Court which is defined to mean approach to Court without restriction or inhibition. It was argued here that the Plaintiff’s claim being an action predicated on an Anton Piller Order; the requirement of 30 days pre-action notice is capable of causing an irreparable damage to the Plaintiff’s right of access to Court and hence unconstitutional. The requirement of pre-action notice as contained in Section 26(1) and (2) of Decree No. 15 of 1993 is as well an improper obstacle which contravened the provision of Section 36 of the 1999 Constitution argued the Learned Counsel Dr. Sodipo. While appreciating the ingenuity of the Learned Counsel Dr. Sodipo in formulating the 3 scenarios that constitute an exception of pre-action notice, the facts in the instant case do not fall within the contemplation of the said hypothesis. I am in agreement with the views of Mr. Oyeyipo Counsel on behalf of the Applicant that giving effect to the exceptions for the application of Section 26(1) and (2) of Decree No. 15 of 1993 will no doubt amount to insubordination and judicial impertinence.

This is against the clear and unequivocal decisions of the Superior Courts that found the requirement of a pre-action notice under Section 26(1) of  NAFDAC Decree No. 15 of 1993 in accord with all the provisions of the 1999 Constitution. Refer to Reckitt & Colman vs. Gongoni (supra). The Supreme Court in Mobil Phoducing (Nig.) Unlimited vs. LASEPA (Supra), it was held that the provisions prescribing pre-action notice are mandatory. And where as in the instant case, the law requires that a pre-action notice should be given, failure to give the notice will render the action incompetent because it is a precondition to the suit.

It is worthy to mention that both Counsel on behalf of the 6th Defendant/Applicant and that of the Plaintiff cited and relied on the Supreme Court decision in Amadi vs. NNPC (Supra). The issue for determination in that case was not whether the provisions of Section 11(2) of the NNPC Act,’ (1977 is in conflict with any of the provision of the Constitution or not. The real issue was whether the pre-action notice which has not stated the name and place of abode of the intending Plaintiff complied with the provision of Section 11 (2) of the NNPC Act, 1977.

The decisis in that case is that Section 11(2) of NNPC Act, 1977 which is pari materia with Section 26(1) of NAFDAC Decree No. 15 of 1993 does not in any way breach the provision of Section 36(1) of any other provision of the Constitution of the Federal Republic of Nigeria 1999 and hence not an impediment of the Plaintiff’s right of access to Court. It is well recognised procedural provision which does not remove the adjudicatory power of Court. Instead, it prescribed steps to be followed before the jurisdiction of the Court can be activated. Refer to Shuaibu v. Naicom 12 NWLR (Part 708) 16 – 134 and Atolagbe v. Ammi (1997) 9 NWLR (Part 522) 536.

Having held the view that the Plaintiff has not complied with the mandatory requirements of serving 30 days pre-action notice in accordance with Section 26(1) of NAFDAC Decree No. 15 of 1993 before commencing this action against the 6th Defendant, the jurisdiction of the Court is in my respectful view not activated.

Accordingly, the name of the 6th Defendant ought to be struck out.

There is however no substance in the application of the 1st and 5th Defendants in that respect as the said provision did not tie their respective interests. It is therefore misconceived and is hereby refused without much ado.

The next application to be considered is the Motion on Notice dated August, 2003, brought pursuant to Order 9 Rules 2(1), Il, 12(1) and (2) of the Federal High Court (Civil Procedure) Rules, 2000 and Inherent Jurisdiction of the Court. In it, the 1st and 5th Defendants/Applicants are praying for

1. AN ORDER extending the time within which to apply to set aside the interim orders of the Honourable Court given in this suit on July 25, 2003.

2. AN ORDER setting aside and discharging the Interim Orders aforesaid in paragraphs 1, 2, 3, 4, 5 , 6, 7, 9 especially paragraph 3 of the said order of this Honourable Court made against the Defendants/Applicants on July 25, 2003.

3. AND OR IN THE ALTERNATIVE AN ORDER striking out or dismissing this suit on the grounds of lack of jurisdiction.

4. Such further or other Orders as the Court may deem fit to make in the circumstances.

The grounds for the application are:

(i) Suppression and misrepresentation of material facts.

(ii) Paragraph 3 of the said interim order is a substantial relief.

(iii) The Plaintiffs/Respondents did not comply with the mandatory provisions of the National Agency for Food and Drugs Administration and Control Act 1993.

(iv) The Writ of Summons and Statement of Claim does not disclose any cause of action.

The Motion is supported by a 7 paragraphs affidavit deposed to by one LAWRENCE BALOGUN; a Solicitor in the Firm of Messrs BAYO OJO & CO; 1st and 5th Defendant’s Counsel. Attached to the Motion are 3 Exhibits marked G1 – G3. There is also a 6 paragraphs affidavit of Urgency deposed to by same deponent.

In paragraph 6 of the affidavit of urgency, the 1st and 5th Defendants/Applicants have stated the reasons why it became imperative to apply for extension of time within which to bring the application – and it read thus. That Defendants and their said Pharmacist told me and I verily believe them as follows:

(a) That the interim Anton Pillar Order were made by this Honourable Court against the 1st and 5th Defendants on July 25th, 2003, and was served and executed against the 1st and 5th Defendants on July 29, 2003, at which time the Managing Director of the 1st Defendant who has the direct personal knowledge of most of the facts of this case was out of Lagos.

(b) That the said Managing Director of the 1st Defendant on arrival to Lagos on Tuesday, August 4th, 2003, at which time we could not finish collecting facts and material necessary for the thorough presentation of the Defendant’s case hence the Defendant become out of time.

(c) That if the Managing Director of the 1st Defendant was in town on July 29th, 2003, and we were briefed accordingly the Defendant would not have been out of time hence their delay was not deliberate nor intentional but occasioned by the facts adumbrated above.

(d) That all the ALAXIN Products seized by the order of Court on July 29, 2003 from the 1st and 5th Defendants are Pharmaceutical products that if not properly stored will have a negative degeneration of their active ingredients.

(e) That if ALAXIN is not properly stored composition of the compound molecule therein will be altered.

(f) That the 1st and 5th Defendants ALAXIN products have very short-lift span and shelve period of 2 years and they have all passed 6 months already.

(g) That the 1st – 5th Defendants ALAXIN drugs are supposed to be stored in less than room temperature and I am aware that the Federal High Court premises (Store) is not less than room temperature neither does it have such storage facility for the purpose of the preservation of this highly sensitive drugs.

(h) That the ALAXIN drugs belonging to the 1st – 5th Defendants which at seized are valued at huge sums of money and their seizure are adverse affecting the business of the 1st and 5th Defendants.

(i) That there is an urgent need for the 1st – 5th Defendants Motion to discharge the Plaintiff interim orders to be heard expeditiously for the reason elucidate in paragraphs 4d – h hereof and moreso when the orders sought to discharged were obtained exparte to the exclusion of the Defendants.

(J) That it is the interest of justice that the 1st – 5th Defendants/Applicants’ Motion to discharge the Honourable Court’s Order of July 29, 2003 be heard urgently and expeditiously as the Plaintiffs will not be prejudiced or affected in any way if the 1st – 5th Defendants/Applicants’ Motion is heard swiftly.

It is pertinenent to note also that the 1st-5th Defendants/Applicants on August 19, 2003 filed a 4 paragraph Further and Better affidavit in support of the Motion to discharge with 4 annextures marked Exhibit FB1 – FB4. The cumulative effect of both affidavit in support of the Motion to discharge and Further and Better Affidavit are that Plaintiff had conealed, suppressed and misrepresented material facts when they applied for the order of interim injunction on July 23, 2003, in that:

(a) The alleged patent is non registrable

(b) The Plaintiff have no Patent.

(c) The ARTEMISININ is not a patented invention.

(d) The ARTEMISININ is a state of the art within the knowledge of general Chinese herbal medicine for over 2000 years ago.

(e) The ARTEMISININ is the generic compound from which DIHYDRO ARTEMISININ was derived.

(f) TheDIHYDROARTEMISININ is a derivation of ARTEMISININ which is formed through the reduction of artemisinin in an alkali medium.

(g) The DIHYDROARTEMISININ constitutes an improvement from ARTEMISININ or molecule.

(h) The DIHYDROARTEMISININ is not an invention nor patented invention.

(i) The DIHYDROARTEMISININ is a mere principles and discovered of scientific nature.

(j) The DIHYDROARTEMISININ allegedly being a process of producing COTECXIN for treatment of malaria it can not afford any exclusive right to the Plaintiffs.

(k) The COTECXIN is a derivative of ARTEMISININ through the process of DIHYDROARTEMISININ and has been sold and marketed to the public for use in CHINA since 1993.

(l) CHINA is non convention nation with Nigeria hence a Chinese Patent or non Patent cannot validly claim foreign priority date in Nigeria.

(m) The DIHYDROARTEMISININ which the Plaintiff claimed to have registered as a Patent in the form No. 3 does not give a description of the relevant invention with any appropriate plans and drawings but it is a process of producing a drug called COTECXIN while is not registrable.

(n) The ALAXIN and COTECXIN are registered Trademarks in Nigeria and both are authorized by appropriate authorities for sale in Nigeria.

(o) The DIHYDROARTEMISININ was not new in 1999 and or 2002 when it was registered in Nigeria.

It was further averred on behalf of the 1st – 5th Defendants/Applicants that the Plaintiffs has suppressed the facts that free and general sale of ARTECOM made of DIHYDROARTEMISININ any licence from 1st Plaintiff by the Manufacturers of ARTECOM. That the DIHYDROARTENISININ is one of the derivatives of ARTEMISININ like ARTEMETHER and ATEETHA and DIHYDROARTEMISININ is both a derivative as ARTENISININ applied for grant of NAFDAC licence with a Certificate obtained from appropriate Chinese Agency showing that ARTECOM is freely sold in China.

Moving the Motion on the discharge of the interim order, the Learned Counsel on behalf of the 1st – 5th Defendants/Applicants, Chief Bayo Ojo (SAN) has submitted that from Exhibit G3 the scope of protection conferred on the Plaintiffs is on drugs Cotecxin and since paragraph C of it states that Dihydroartemisinin is derivative of Artetuisinin it follows that it can not be Patented because it forms part of state of acts having being kiown and used in China for over 2000 years. He referred to Section 1(1) and (2) of Patent & Design Act and the case of Peter E. Ventures Nig. Ltd vs. Gazasonner Ind. Ltd (1998) 6 (Part 555) 619 at 632 – 636. It was further submitted that enough materials were not before the Court at the time of the interim Order as such it ought to be discharged now that these materials are available. It is to be noted also that even on the Motion on Notice Exhibit G3 is not annexed and that the said document was only made availabie by the 1st – 5th Defendants which clearly indicate the extent of the Plaintiffs’ suppression and concealment.

It was also the submission of Learned Counsel Chief Bayo Ojo (SAN) that the Plaintiff’s main relief is an order of perpetual injunction restraining the Defendants from infringing the letters of Patent No. 13566 and on 25/7/03 in paragraph 3 the Court granted same relief in paragraph 3 exparte which he submits that by so doing, the Court has decided or determined the substantive claim without hearing the Defendants. Reference was made to Akuma Ind. Ltd vs. Ayman (1999) 13. NWLR (Pan 633) 68 at 89 – 90 and R.N. vs E.N.D  (1989) 3 (Part 108) 234 at 246 Paragraphs G – H.

Finally, the Learned Counsel Chief Bayo Ojo (SAN) submitted that the Plaintiffs Cotecxin cannot be patented as it is only registrable within one year after discovery and even then China is not a convention country.

Reference was made to Section 27(2) of the Patent & Design Act. And in the absence of counter affidavit to the Further and Better a ffidavit, the Plaintiffs should be taken to have admitted all the facts stated therein.

In response to the Motion on Notice to discharge the interim order; the Plaintiffs filed 14 paragraphs counter-affidavit deposed to by one FEMI ADESOLA of Counsel. The main issues raised in the said counter affidavit are contained in paragraphs 7 – 11 thereof and in essence it reiterates the fact that they have the Patent right in Dihydroartemisinin with No. 13566 and that same constitutes an improvement from the Artemisinin molecule and hence the improvement makes it patentable as an invention. And it is conceded that Alaxin and Cotecxin are registered trade marks and that the Plaintiffs case is mainly an action for the infringement of the Plaintiffs Patent in the use of dihydroartemisinin.

Submitting further on the motion seeking to discharge the exparte order; the Learned submission centred on substantive matters and hence could not justify a discharge of the interim order. Similarly; the submission aimed at nullification of the Patent having been to that extent be used.

On the provisions of Sections 6 and 9 of the Patent & Design Act particularly subSection (2) of Section 6 thereof, 2 questions arises according to Professor Olawoyin and these are:

  1. Who determines the scope of sub-Section 2 of the Patent and Design Act; and
  2. Who interpret the purport of the Section?

It was submitted that these are issues in the substantive matter for the Court to decide. He referred to Terry on Law of Patent, 3rd Edition, Page 67 Paragraph 180 titled “On Construction” is for Court alone. The newness or otherwise of a Patent is determinable on what is obtained in a Particular Country and that Section 27 deals with convention and it has nothing to do with China.

And Section 19 was cited out of context as it does not refer to Sections 6 and 9. Similarly, Section 19 of the Act whereby the case of Peter vs. Gazasona (Supra) was cited deals with Design not Patent. Thus there was no concealment as Exhibit 2 is the Certificate while Exhibit 3 is one of the papers used in procurement of Exhibit 2.

On the focus of the interim order, it was submitted that the focus is DIHYDROARTEMISININ which is very visible in both Exhibit 2 and 3 and hence no concealment of fact at the time of the interim order

It is pertinent to state at this juncture that an ex parte application is made where there is a very urgent need to induce the Court to abridge the procedure in admitting an issue or matter which must of necessity and having regards to the nature of the matter be attended to there being an apprehension that failure to resort to such procedure will be fatal. Such an application should neither be resorted to at the mere whims of the Applicant when the situation does not call for it nor should the Court grant it as a matter of course where there is nothing to show that chaos will result in not resorting to this procedure. See Guardian Newspapers Ltd vs. A. G Federation (1995) 5 NWLR (Pan 398) 703, no – 731.

Thus, a party affected by an order ex parte can either by Motion move the Court who made it to set it aside, or appeal against same.

However in the instant case, the Applicant has opted for the former method of moving the Court to set it aside.  Although, the, 1st – 5th Defendants/Applicants have by virtue of Order 9 Rule 11 of the Rules of Court applied for the discharge of same not within seven days after service, he urged the Court to extend the period for reasons stated in paragraph 6 of the supporting affidavit of the Motion to discharge the order of July 29, 2003.

Where a party as in the instant case moves the Court to discharge an order of interim injunction made against him and there is also a Motion for interlocutory injunction, the normal practice as decided in Efiom vs. Ironbar (2000) 3. NVLR (Part 650) 545 at 556 is to take the two applications together and then rule on them that is to grant or refuse the application for interlocutory injunction. This is because if the Court decides to take only the application to discharge the order of interim injunction, it will either grant the application and discharge the order or refuse the application. The Court’s refusal of the application is equivalent to a grant of an interlocutory injunction.

It is against this bedrock, I will proceed to consider and determine the Motion of interlocutory injunction dated the 23/7/03 and brought pursuant to Section 13 of the Federal High Court Act; 1973, Order 33 Rules 1 and 2; Order 9 Rule Il; Order 35 of the Federal High Court (Civil Procedure) Rules, 2000 not 1999 as presented by the Plaintiffs Counsel as well as under Section 25 of the Patents and Designs Act, 1970 and Inherent Jurisdiction of the Court. In it the Plaintiffs/Applicants are seeking for:

  1. AN ORDER OF INTERLOCUTORY INJUNCTION restraining Defendants herein, whether acting by themselves, or through their directors officers, servants, agents, privies or howsoever, otherwise, from infringing the Plaintiffs patent in the compound DIHYDROARTEMISININ b: producing; causing any other person to produce, importing or distributing by way of trade or offering for sale or storing any anti-malaria drug which has active ingredient DIHYDROARTEMISININ without the consent the Plaintiffs who are the owners of the Patent pending the trial of the action.
  2. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honorable Court may deem fit to make in the circumstances. The Motion is support by 13 paragraphs affidavit sworn to by FEMI ADESOLA; a Solicitor the Firm of Chief G. O. Sodipo & Co., Solicitors to the Plaintiff. Attached to the Motion are the ten Exhibits and also a 9 paragraphs affidavit Urgency deposed to by the same deponent.

The Kernel of the Plantiff’s case is stated in Paragraph 3 of the supporting affidavit

Viewing the above and the averments in paragraphs 5 of the supporting affidavit of the Plaintiffs which read as follows:-

That I am informed by – and I verily believe him that sometimes in July,2000, the Plaintiffs found a drug known as ALAXIN which has the active ingredient and compound DIHYDROARTEMISININ in Nigeria and complained, to the 6th Defendant demanding an investigation and requesting that the 6th Defendant should not permit the sale or importation of any such drug. Without, the Plaintiffs licence the Plaintiffs correspondence and the replies that is letters dated September 4, 2000; November 30, 2000 and March 14, 2001 by NAFDAC and Letters dated October 18, 2002, by Church bells Pharm. Nigeria Ltd and reply by Beijing Municipal Science and Technology Commission dated 20th July, 2001 are herewith attached and marked Exhibit DIHYDRO 5, 6, 7, 8 and 9 respectively.

It is evident at least from Exhibit DIHYDRO 7 that the Plaintiffs were requested to furnish NAFDAC with very vital information respecting the inventor of the formulation and how the manufacturers acquired the right of patent amongst others on 14th March, 2001 and latest response was that of 18th October, 2002 in Exhibit DIHYDRO 8 which is indicative of delay on the part of the Plaintiff and thus shift the balance of convenience in favour of the Defendants

The Plaintiffs in paragraphs 3F, 4, 8 and 10 of their supporting affidavit averred that consequent to NAFDAC’S approval – they expended large sum of money to sponsor nationwide acquired outstanding good will.

And unless the Defendants are restrained the infringement will continue and same will undermine the business, reputation and good will and the jobs of many Nigerians will suffer. However, there is no where the loss of business reputation; goodwill and of course, the possible loss of job is said to be unquantifiable.

It is not enough for an Applicant in an application for an order of interlocutory injunction to say that he has a legal right or interest to be protected. He must go further to establish irreparable damage and the fact that only an order of injunction can be adequate remedy. And it is not every case where there is or are triable issues that an order of interlocutory injunction must be issued or made. If monetary compensation is adequate; injunction will be issued or made. If monetary compensation is adequate; injunction will be refused. Refer to Ayo-Ayodele Pharm. Chem (Nig.) Ltd. vs. NDIC (2000) 4 NWLR (Part 653) 420, 435 436. Also in Union Beverages Ltd vs. Pepsi Cola Int. Ltd. (Supra), the Supreme Court held that it is only where the type of loss alleged by an Applicant for interlocutory injunction cannot be adequately compensated for by award of damages, that an interlocutory injunction can be granted  pending the determination of the substantive suit.

Since the grant of interlocutory injunction is not a matter of course or routine slavishly following the grant of an interim injunction, it is not granted to compensate a Plaintiff in the interim for merely initiating an action or because a Plaintiff has a relief of perpetual injunction in his claim. Thus, a trial Judge should treat the application before him purely on its merits and give decision on facts before him.

The 1st – 5th Defendants have urged the Court to strike out the suit on the ground that the 2nd Defendant is a Foreign Company within the meaning of Section 54 of CAMA in th11t the necessary Leave of Court was not first obtained before issuing the Writ on 23/7/03 and reliance was placed on the case of Unipetrol (Nig) Plc vs. Agip (Nig) Pie (2002) 14 NWLR (Part 787) 312 at 329 331.

I however agree with the Plaintiffs Counsel that the issue of Leave was raised only in the course of arguing the Motions and hold that same is capable of springing surprises.

Having considered the totality of the affidavit evidence placed before this Court in this matter particularly the unresolved issues in Exhibits DIHYDRO 7 and 9 attached to the Motion on Notice. And taking cognizance of the delay on the part of the Plaintiff in not responding to the NAFDAC requests, which might have resolved the issues one way or other 2 years before the 1st- 5th Defendants advertisement as contained in Vanguard Newspapers; this Court is reluctant to grant the interlocutory injunction sought because it will result to disequilibrium and hardship to the Respondents.

This is particularly so where the Plaintiffs in the instant case did not: show that they cannot be adequately compensated by the award of damages. I have pointed earlier that the two applications both for interlocutory injunction and that seeking to· discharge the interim order were taken together in line with the decision in Effion vs. lronbar (Supra); and having hold that the interest of justice is in favour of. not granting the interlocutory injunction; it follows that the interim order earlier granted cannot stand. Consequently:

  1. The name of the 6th Defendant in this suit is hereby struck out for non compliance with statutory notice provided under Section 26(1) and (2) of Decree No. 15 of 1993.
  2. The Motion on Notice for interlocutory order dated 23/7/03 is hereby refused and
  3. The interim order granted on July 25, 2003 is hereby discharged.
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