British American Tobacco Nigeria Ltd. v. International Tobacco Company Plc.
Court of Appeal
Judgement delivered on Monday, June 4, 2012
Citation: 55 NIPJD [CA. 2012] 29/2011
Suit No. CA/IL/29/2011 Jurisdiction: Nigeria
BEFORE THEIR LORDSHIPS
IGNATIUS IGWE AGUBE, J.C.A
ITA GEORGE MBABA, J.C.A.
TIJJANI ABDULLAHI, J.C.A. (Delivering the Lead Judgement)
Appearances: Obafemi Agaba (with him, A. Mbah and A. Omolua) for the Appellant
Olasani A. Oyefeso for the1st Respondent
Obatosin Ogunkeye (with him, O. Olukoya and T. Odumbaku) for the 2nd Respondent
BRITISH AMERICAN TOBACCO NIGERIA LTD………………………………………..Appellant
1. INTERNATIONAL TOBACCO COMPANY PLC
(Sued on its behalf and on behalf and as representing all members of the class of persons defined as engaged or taking steps to engage in trade or business of manufacturing, importing branding, marketing, distributing and selling cigarettes and tobacco products or wrapping materials branded as DORCHESTER purporting to be the Plaintiffs by the adoption of the Plaintiffs DORCHESTER trademark and devices)
2. HABANERA LIMITED……………………………………………………………………..Respondents
Appellant, British American Tobacco Nigeria Ltd., brought an appeal against the Ruling of the Federal High Court, Ilorin, in suit No FHC/IL/CS/47/2010.
Whereof his lordship, A. O. Faji J., on 14/2/2011, ruled against the Appellant and discharged the ex-parte Orders of Interim Injunction earlier granted to it (Appellant) by the lower Court on 13/12/2010. The Appellant, as plaintiff at the Court below, had filed an Ex-parte application, contemporaneously, with the writ of summons, for Interim Injunction and Anton Piller Order (among other reliefs) and the same were granted and executed, accordingly, at the premises of the Defendant/Respondent (International Tobacco Company Plc.). Thereafter the Defendant/Respondent filed an application to set aside and discharge the said Interim Injunction and Anton Piller Orders, for having been obtained under misrepresentation/suppression of facts. After taking all the arguments of all the Counsel, in a considered Ruling, the trial Judge ruled in favour of the Defendant thus:
“…The Defendant has shown that all it did was in consonance with and in the exercise of the rights of a registered Gallaher, and that in my view, gives the Defendant perfect cover in the circumstances of this case. Not having made the existence of this rival claimant to the trademark known to the Court, the Plaintiff suppressed a fact relating to its status vis-a-vis the trademark and the Ex-parte order made on 13/12/2010 ought to be discharged. I so order…”
That is the Ruling Appellant appealed against in this appeal.
The Appellant filed its Notice and Grounds of Appeal on 27/2/2011 against the 1st Respondent (who was the sole Defendant at the lower Court). It raised three grounds of appeal, as follows:
The learned trial Judge erred in law when he held that the plaintiff misrepresented and suppressed facts in obtaining the Ex-parte Orders granted by the lower Court on December 13, 2010.
PARTICULARS OF ERROR:
(a) The Honourable Court in reaching its decision failed to consider the entire facts and circumstances of this matter, especially as it relates to the specific parties before the Court as at the time of institution of the suit, viz;
(i) The Plaintiff discovered that the Defendant was engaged in an act that infringed and threatens to infringe its proprietary/legal right in the “DORCHESTER” trademark No. RTM 62627 in class 34, consequent upon which the Plaintiff instituted the substantive suit.
(ii) At the time of the institution of the suit, the Plaintiff was not aware of and was not in a position to know of any internal arrangement between the Defendant and any third party such as Gallaher Limited, J. T. International Group of Companies, and/or Habanera Limited, or whether the Defendant could have derived the right to use the subject trade mark from any of such third parties.
(iii) The Defendant is not a party to any of the pending court actions between the Plaintiff and Gallaher, nor is Gallaher a party to the suit herein.
(b) Consequent upon the above, the facts found by the Honourable Court to have been suppressed by the Plaintiff are not material facts requiring disclosure within the context of the law and the entire facts and circumstances of this matter and the parties thereto as at the time of filing of the application.
The Learned Trial Judge erred in law when he assumed and exercised jurisdiction to hear and determine the Defendant’s application for the discharge of the ex-parte order, the same being incompetent ab initio.
PARTICULARS OF ERROR
(a) In filing its Memorandum of Appearance and the application for discharge, the Defendant failed to file its statement of Defence and other relevant “front loaded” processes, contrary to Order 7 Rule 1 and Order 13 Rule 2(1) of the Federal High Court (Civil Procedure) Rules, 2009.
The Learned Trial Judge erred in law when he directed that parties should file respective briefs of argument to address it on assessment of damages in view of the discharge of the ex-parte application.
PARTICULARS OF ERROR
(a)There is no application for assessment of damages before the court.
(b)The suit herein remains pending and subsisting 1 and has not been determined.”
For Relief, the Appellant prayed that the appeal be allowed and the decision of the trial Court be reversed; that the trial judge wrongly discharged the Ex-parte Orders of Interim injunctions granted on 13th December, 2010. (See pages 577 to 579 of the Record).
The Appellant filed their Brief of argument on 13/6/2011, and served same on the Respondent, who filed its brief of argument on 21/7 /2011.
It would be recalled that while, this appeal was yet to be heard, the 2nd Respondent, HABANERA LIMITED (who had fought strenuously to be joined as an intervener) was allowed to join as a party to this Appeal and in the substantive Suit at the lower Court, on 8th March, 2012, and all the processes in this appeal and in the main suit at the lower Court were ordered to be served on the said 2nd Respondent.
Upon being served with the processes, the 2nd Respondent filed its Brief of argument on 20/4/2012 and served same on the other parties. On receipt of the 2nd Respondent’s Brief, Appellant filed a Reply Brief on 7/5/2002. Appellant had earlier filed a Reply Brief against the original Respondent’s Brief on 5/8/2011.
In their Brief, Appellant distilled three (3) issues for determination, as follows:
(1). Whether the learned trial Judge erred in law when he held that the Appellant suppressed and misrepresented material facts relating to Gallaher Limited and its (Appellant’s right to exclusive use of the subject trademark) in obtaining the Ex-parte orders granted by the lower Court on December 13, 2010).
(2). Whether the Respondent’s Motion on Notice dated December 22, 2010 was not incompetent, and the Learned Trial Judge erred in law when he assumed jurisdiction to hear and determine the said Motion.
(3). Whether the order as contained in the Ruling of the lower Court of February 14, 2011 directing the parties to address it on inquiry as to damages was not premature and incompetent in law, having regard to the stage of the proceedings (sic) Order 31 Rule 1(a) of the Federal High Court (Civil Procedure) Rules, 2009.
Appellant did not relate the issues to the grounds of appeal formally, but it is obvious from the reading of the three grounds of appeal that the 3 issues were distilled from the 3 grounds of appeal, serially, that is, Issue one from ground 1, Issue 2 from ground 2 and Issue 3 from ground 3.
The original Respondent (now 1st Respondent) also distilled three (3) issues for determination as follows:
(i). Whether the material facts placed before the Court below by the Appellant in the Motion Ex-parte dated 7th December, 2010 as contained in pages 177 -275 of the Record of Appeal demonstrate that the Appellant suppressed and misrepresented facts to the Court below whilst procuring the Ex-parte orders of 13th December 2010 (Ground)
(ii) Whether Order 26 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009, requires a party affected by an Ex-parte Order to file any other process order than an application to discharge or vary the said Ex-parte Order (Ground 2)
(iii) Whether a court which raises an issue suo motu and directs parties to address it on such issue without taking decision on same has erred in law so as to occasion a miscarriage of justice (Ground 3).
The 2nd Respondent too, distilled 3 issues for determination namely:
(i. ) Whether the Ex-parte orders of the trial court made on 13th December, 2010 were correctly discharged by the trial court? (ground 1).
(ii). Whether the trial court was precluded from hearing the Motion to discharge the Ex-parte orders of 13th December, 2010, before the filing by the 1st Respondent of its statement of Defence and other processes required to be filed therewith under the Rules of the Federal High Court? (Ground 2)
(iii). Whether the trial court has discretion to order addresses on enquiry as to damages without any application for enquiry as to damages first having been filed by the party who may claim damages under the undertaking as to damages? (Ground 3).
It can be seen that the issues by the separate parties are the same, except for semantics.
Arguing the Appeal, Obafemi Agaba Esq, submitted that the real issue in controversy to be determined was whether the requirement of disclosure in praying the court for ex-parte orders requires an applicant to inundate the Court with all sort of facts, or is merely obliged to put before the Court only those facts which are material to the determination and grant of his application Appellant agreed that the obligation of party in Ex-parte application is to make full disclosure of material facts within his knowledge, and not to inundate the Court with extraneous facts that have no direct bearings on the issues or parties before the Court, neither can such a party be obliged to disclose a fact which is not within his knowledge.
He relied on the Black’s Law Dictionary, Sixth Edition at page 977 on the definition of ‘material fact’ “one which is essential to the case, defense, application, etc; and without which it court not be supported. One which tends to establish any of issues raised. The ‘material facts’ of an issue of fact as such as are necessary to determine the issue. Material fact is one upon which outcome of litigation depends”
Counsel also referred us to the Supreme Court case of Ikemson vs. State (1989) 3 NWLR (pt. 110) 455 AT 474 where Karibi-Whyte JSC held:
“I think it is right to postulate that material evidence is such evidence which on account of its logical nexus with the issue tends to influence decisively the establishment of the fact in issue.”
He submitted that the fact in issue in the Appellant’s application upon which the trial Court granted the Ex-parte application on 13/12/2010 was whether the Plaintiff had legal right in the Dorchester trademark RTM No 62627 in class 34, dated September 23, 1993, which ought to be protected against the Respondent’s acts of infringement by the grant of the said Ex-parte orders. He submitted that the ‘material facts’ in establishing the fact in issue in the Ex-parte application were facts relating to the valid existence and subsistence or otherwise of the Appellant’s legal right, amongst other requirements for the grant of the Ex-parte application. He added that what is material fact will also depend upon the facts and circumstances of each particular case, and relied again on the case of Ikemson vs. State (supra) at 474. He submitted that at the time Applicant brought the Ex-parte application, on discovering that the Respondent was engaging in acts which violated/threatened Applicant’s (Appellant’s) legal rights , “Applicant did not know and was not in a position to know whether there was any relationship between the Respondent and any third parties.”
He relied on paragraphs 11, 12 and 13 of the Counter affidavit in opposition to the Respondents application dated December 22, 2010 to discharge the interim injunction – pages 473 – 474 of the Records.
He argued that all the facts alleged by the Respondent in the application for discharge of the Ex-parte orders, to have been suppressed/misrepresented by the Applicant were not such facts as must be necessarily taken into consideration in the determination of the Ex-parte application; that they have no nexus with the fact in issue in the said application. He referred us to pages 466 – 467 of the Records on the facts alleged by the Respondent to have been suppressed/misrepresented facts relating to the existence of Gallaher’s Dorchester trademark registration and the litigation between them (Gallaher and Appellant) in Suits Nos FHC/L/CS/900/2010.
Counsel submitted that those facts were not in any way material to dispute between the Appellant and the Respondent, so as to be required to be disclosed in the Ex-parte application; that the suits were part of the positive steps taken by the Appellant to protect its legal right against the offending act of a third party, completely different and distinct from the Defendant/Applicant he relied on paragraphs 8, 9 and 10 of their Counter-affidavit earlier referred (page 473 of the Records). He said that Gallaher Ltd was not a party to the suit, and re-iterated that Appellant, at the time of filing the suit, did not know and court not have known whether the Respondent derived any purported authority/license to carry out its infringing acts from any third party. He retired on paragraphs 11 and 12 of the said Counter affidavit; and said that assuming (without conceding) that the said Gallaher Ltd has a valid registration in respect of Dorchester, that while Sections 5(4) and 7 of the Trade Marks Act appear to recognize situations where more persons may have registrations in respect of the same trademark (and thus entitled to use of the same), this does not in any where preclude any such persons from exercising and protecting the exclusive legal right granted it by law; that it was in furtherance of that right that Appellant brought the Ex-parte application. Counsel further made submissions to the effect that the Respondent being an entity with some legal right over the subject trademark is by operation of law excluded from the class of people so sued by the Appellant at the court below and that exclusive right arising from the registration of a trademark is a grant of the law, and not a question of fact.
I am at a loss, seeing how those two points or issues are related to the issue in contention, i e. how the fact that Appellant suppressed/misrepresented material facts relating to Gallaher Ltd which the Appellant had a duty to debunk, relate to its (Appellant’s) exclusive right of use of the subject trademark, at the point of the Ex-parte application! Arguments relating to such points appear to be fresh issues and they rather touch on the merits of the substantive case. They are therefore outside the scope of this appeal, which is on preliminary/interlocutory issue, as per the ruling of the lower Court.
On issue 2, whether the Respondents’ application to set aside the interim order was not incompetent and the Court erred in entertaining it, Appellant’s Counsel submitted that since their case commenced by appropriate originating process, the Respondent was required to comply with the provisions of Order 7 Rule 1 and Order 13 Rule 2 (1) of the Federal High Court (Civil Procedure) Rules, 2009, if it wanted to respond to that suit. He reproduced those provisions of the law and submitted that they are mandatory conditions precedents that must be complied with by a defendant who intends to defend a suit, commenced by writ of summons; that the Respondent in this case merely filed a memorandum of appearance together with the motion on notice to discharge the Ex-parte orders, without complying with the mandatory condition precedents prescribed by the Rules. He relied on the case of Madukolu vs. Nkemdilim (1962) 2 NSCE 374 at 379 – 380:
“A Court is competent when –
(1). it is properly constituted with respect to the number and qualification of its, members;
(2). The subject matter of the action is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising jurisdiction;
(3). The Action is initiated by due process of law;
(4). Any condition precedent to the exercise of its jurisdiction has been fulfilled. (Emphasis his).
Counsel submitted that where conditions precedent are not fulfilled the application become incompetent and cannot be entertained by the Court. He relied on the case of Ajagungbade III vs. Adeyelu II (2000) 16 NWLR (pt 738) 126 at 179; Okolo vs. UBN LTD (2004) 3 NWLR (pt 859) 87 at 108 and 110 and said that failure of the Respondent to have filed Memorandum of Appearance together with the prescribed processes before filing the Motion on Notice of 22/12/2011 amounted to non-compliance with the due process of law, and non fulfilment of the condition precedent under Orders 7 Rule 1 and 13 Rule 2 (1) of the Rules of Court.
Hence the motion was incompetent; that the lower court was in error by entertaining the Motion, and so the entire proceeding and its ruling were a nullity; that litigants are under a duty to obey the rules of court when they are evoking the discretionary powers of the court. He relied on the case of IBIGBAMI vs MILITANCY GOVERNOR, EKITI STATE (2004) 4 NWLR (pt. 863) 243 at 246.
On issue 3, whether the order of court directing counsel to address it on inquiry as to damages, was not premature having regard to the stage of the proceedings, Counsel submitted that Order 31 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009, stipulates the condition precedents that must be fulfilled before the lower court will be clothed with jurisdiction for an enquiry into assessment of damages in Civil Proceedings. He reproduced the said provisions and submitted that the case must terminate before the court could delve into an enquiry into an assessment of damages and that the court can only do so on application of the defendant; that in this case the substantive suit was still pending and subsisting and there was no application by the respondent for an enquiry into and assessment of damages; that the trial court, suo motu , raised the issue as to damages and proceeded to ask parties to address it. He referred us to page 576 of the Records, and submitted the court was in error to do so and to resolve all the issues in favour of the Appellants.
Replying, the 1st Respondent’s counsel, Olaseni A. Oyefeso Esq (who settled the Brief) submitted that the entire circumstances surrounding the case before the lower court as well as the material facts placed before that court at the time it determined the Respondents’ motion dated 22/12/2011 (sic) demonstrated that the Appellant suppressed material facts and misrepresented facts whilst procuring the Ex-parte orders of 13/12/2010.
Counsel submitted that the Appellant had listed the grounds (facts) to support their Ex-parte application but suppressed and misrepresented facts in paragraph 58 of their affidavit (deposed to by Sola Dosunmu) in support of the Ex-parte motion (pages 182 – 189 of the Records), by which the Ex-parte orders were procured; that the corollary of the ruling of 22/12/2010 discharging the Ex-parte orders (as per pages 552 – 576 of the Records) is that the Appellant was aware as at that time it applied for the Ex-parte orders that Gallaher Ltd was also registered proprietor of the Dorchester Trade Mark the subject matter of the suit and therefore should have disclosed such interest of the 3rd party, more so as the Appellant sought and obtained orders of the court below to sue the Respondent on its behalf and on behalf of and representing all members of the class of persons defined as engaged and or taking steps to engage in the trade or business of manufacturing, importing, marketing and setting cigarettes branded as Dorchester and by so doing had sued Gallaher Ltd as a member of the class represented by the Respondent.
Counsel then supplied the particulars of Appellant’s knowledge of the interest of Gallaher Ltd in the subject matter as follows:
(1). Gallaher Ltd had filed suit No. FHC/L/CS/1215/2004 to protect its interest in the Dorchester Trade Mark, the subject matter of this suit. Exhibit A8 (pages 387 – 409 of the Records) which was the judgment of Shnaibu J in the suit and it shows that on the day of the judgment, Kadiri Y. A Esq (leading counsel in this suit at the Court below, who also settled the Motion Ex-parte) appeared in that suit!
(2). There is Suit No FHC/L/C/179/2005 (Exhibit A9) which was instituted on behalf of the Appellant by the same Appellant’s Counsel in this appeal, against the same Company (Gallaher Ltd) and Wanovseas Ltd to challenge the certificate of registration of the Dorchester Trade Mark issued in favour of Wanovseas Ltd, as well as registration of assignment of the aforesaid certificate of registration to Gallaher Ltd (See pages 412 – 429 of the Records).
(3). There is Suit No. FHC/L/CS/900/2010 (Exhibit A10) which was instituted on behalf of Gallaher Ltd against the Appellant to challenge the registration certificate issued in favour of Nigerian (Tobacco Company as well as registration of the assignment of the certificate to the Appellant and the same Appellant’s Counsel in this Appeal was the Appellant’s Counsel in that suit – (pages 431 – 438 of the Records)
(4). All these, as well as other facts contained in the affidavit in support of the application upon which the Court below discharged the Ex-parte Orders were not disclosed by the Appellant in the affidavit in support of the Motion Ex-parte, particularly as all the facts shown to have been suppressed were contained in the 2 distinct counter affidavits filed and served on the Appellant – See pages 420 – 430 of the Records.
Counsel submitted that it is perfectly settled that a party who makes an Ex-parte application to Court, in the absence of the person who will be affected by the eventual orders of the Court, is under an obligation to the Court to make the fullest possible disclosure of material facts within his knowledge, and if not so done, the Court will not hesitate to withdraw the order, wrongly or inadvertently made He relied on the case of ONYEMELEKWE VS. ATTAH (1993) 5 NWLR (pt. 293) 350 at 364, where this Court (Per OGUNTADE JCA – as he then was) held:
“The misrepresentation and/or suppression of material facts would have drawn the attention of the learned trial judge to the realization that the plaintiffs did not deserve the Ex-parte injunction and therefore the Court ought to have discharged it…The law is that the Court will deal very strictly with a party applying, Ex-parte, for an injunction and who had misrepresented or suppressed material facts …”
See also the Supreme Court decision in Okechuchwu vs. Okechukwu (1989) 2 NWLR (pt. 234) 246; Odutola vs. Lawal (2002)1 NWLR (pt.749) 633 at 671; R. Benkay Nig. Ltd vs. Cadbury Nig. PLC (2006) 6 NWLR (pt. 976) 338 at 367 – 368, where, counsel submitted, this Court and the Supreme Court have held that once it is shown that the party who procured Ex-parte orders acted in bad faith, suppressing known facts and misrepresenting facts to the Court which granted the order, the order will be discharged, and the Court can even do it suo motu, by summoning such a party to show cause why the Ex-parte orders should not be discharged.
Counsel also supplied the particulars of bad faith and misrepresentation, as follows:
(i) Appellant who was aware that Gallaher Ltd had a registered certificate in respect of the Dorchester Trade Mark (as seen in the cases earlier referred, etc) ought to have disclosed such facts/interest to the court below, but instead misrepresented to the Court that it had exclusive right to the said trade mark see paragraphs 26, 37, 38, 39, 43 and 49 of affidavit of Sola Dosunmu in support of the Ex-parte Motion (pages 182 – 189 of the Records).
(ii) Appellant also sought and obtained order of the Court below to sue the Respondent for itself and on behalf of , and as representing all members of the class of persons defined as engaged or taking steps to engage in the trade of manufacturing, importing, branding and marketing cigarettes associated with the Dorchester Trade Mark-that was the prayer 1 of the Appellants’ motion Ex-parte.
By seeking the above prayer, counsel submitted, Appellant intended to sue Gallaher Ltd as a member of the class to be represented by the Respondent, whereas, the said Gallaher Ltd and Appellant were already parties in two different suits before the Federal High Court Lagos over the same Dorchester Trademark!
Counsel argued that the entire submission of Appellant’s counsel in paragraphs 3.1.8 to 3.1.10 of their Brief, which are predicated on the sole point that the Gallaher Ltd was not a party to this suit at the Court below, flies in the face of the above prayer in the Motion Ex-parte. This is because, by that prayer 1 in the Motion Ex-parte, the Respondent was not the only one sued in the suit, having been sued on its own behalf and to carry the cross of all other persons connected to Dorchester trade mark one way or the other; that by suing “the Respondent on its own behalf and on behalf of and representing all members of the class of persons defined as engaged or taking steps to engage in the trade or business of manufacturing importing branding, marketing, distributing and selling cigarettes and tobacco products or tobacco wrapping/packing materials or branded as ‘DORCHESTER’ purporting to be the Appellants’ by adoption of its DORCHESTER trade mark and devices, set-ups, packaging or designs, the Appellant, in addition to suing the Respondent, also intended to sue Wanovseas Nig. Ltd and its assignee, Gallaher Ltd and they were all parties to the suit by so doing.
Thus, counsel said the trial judge was right in his holding. On issue 2 – whether Order 26 Rule 11 of the Federal High Court Rules, 2009, requires a party affected by an Ex-parte order to file any other process, other than application to discharge or vary the Ex-parte orders, counsel submitted that where Ex-parte orders have been granted, a party affected by the orders (even a third party, too) is expected and required to take steps to get the order discharged or varied, within 7 days of being served with the order, or within such further time as the court shall allow, to seek orders to discharge or vary the Ex-parte orders; that there is no other requirement stipulated by the Rules of Court in cases where Ex-parte orders have been obtained against a respondent, as in this case.
Therefore, counsel said the provisions of Order 7 Rule 1 and Order 13 Rule 2 (1) relied upon by the Appellant do not apply to this case, as Order 7 Rule 1 and Order 13 Rule 2 (1) apply to scenarios where no Ex-parte orders have been made or where Ex-parte orders were made, but the party affected chooses not to challenge the same. He submitted that Order 26 Rule 11 was not the applicable law in the circumstances. It says:
“Where an order is made on a motion Ex-parte, any person affected by it may, within seven days, after service of it, or within such further time as the Court shall allow, apply to the Court by motion, to vary or discharge it; and the Court may on notice to the party obtaining the order, either refuse to vary or discharge it, or may vary or discharge it with or without imposing terms as to costs or security, or otherwise, as seems just.”
Respondent’s counsel added that the said provision applies independent of Order 7 Rule 1 and Order 13 Rule 2; thus, a party affected by an Ex-parte order need not file a memorandum of appearance before taking advantage of the provisions of order 26 Rule 11.
On issue 3 – whether a court which raises an issue suo motu and directs parties to address it on such issue without taking any decision on same, has erred in law as to occasion a miscarriage of justice – Counsel for the Respondent reproduced what the learned trial Court said on page 576 of the Records:
“I will now invite the addresses of Counsel on the inquiry as to damages, the plaintiff having undertaken in paragraph 28 of the affidavit of urgency sworn to by Sola Dosunmu to pay damages in the event that the Ex-parte order ought not to have been made.”
He submitted that the above excerpt of the ruling of the Court below, clearly shows that the learned trial judge, contrary to the complaints of Appellant in Ground 3, did not take any decision regarding inquiry as to damages, but only raised the issue suo motu, and correctly invited counsel to address it on the issue; that the court acted rightly, as Courts are allowed to raise issues suo motu in proceedings before it, provided counsel or parties are provided opportunities to address the Court, before taking decision thereon. He relied on the case of ADEJOMU vs. DAVID HUGHES & CO. LTD (1989) 5 NWLR (pt 117) 592; MAIYAKI vs. MAIDOYA (1988) 3 NWLR (pt 81) 226: CARRIBEAN TRADING & FIDELITY CORPORATION Vs. NIGERIAN NATIONAL PETROLEUM CO- OPORATION (1992) 7 NWLR (pt 252) 161 at 182: and the case of ADERIRAN vs. ALAO (1992) 2 NWLR (pt 223) 350 at 370.
Counsel submitted that the learned trial judge did not take any step that was prejudicial to the Appellant or that occasioned any miscarriage of justice.
He urged us to resolve the issues against the Appellant and dismiss the Appeal.
The 2nd Respondent’s counsel, Obatosin Ogunkeye Esq. (who settled the Brief), on issue 1 – whether the Ex-parte orders of the trial Court were correctly discharged answered in the affirmative. Counsel’s argument on this issue was in line with the submissions of learned Counsel for the 1st Respondent on the same issue 1.
He noted that Appellant did not dispute the holding of the trial judge that the Appellant suppressed and misrepresented material facts. Rather Appellant’s contention was that the said facts (found to have been suppressed and misrepresented) were not material facts, therefore their non-disclosure or suppression of same, should not have led to the discharge of the Ex-parte orders!
I do not think it is necessary to reproduce the said arguments of the 2nd Respondents in this Appeal, as it will amount to repetition of what the 1st Respondent said, but in a different way.
It was 2nd Respondents’ strong point that Appellant instituted this suit against the 1st Respondent, knowing that the
1st Respondent was preparing to manufacture DORCHESTER Cigarettes under the authority of Gallaher Limited. Moreover, since the 1st Respondent had disclosed in the affidavit filed to support the application to discharge the Ex-parte orders that the DORCHESTER trade mark to be applied to the cigarettes it was preparing to manufacture was the DORCHESTER trademark, registered to Gallaher Ltd, the Appellant, in filing and presenting this appeal, has deviated from the path of seeking an injunction to stop the manufacture; that it should therefore be concluded that Appellant, deliberately, suppressed the facts.
2nd Respondent also added that the 1st Respondent is a user of Gallaher Ltd’s DORCHESTER trademark; that it is a party in this suit, simply because it has been sued by name, but that it cannot represent the class sued by the Appellant, because it is not using the Appellant’s DORCHESTER trademark; that for that reason also, the Ex-parte order authorizing the 1st Respondent to be sued as a representative of the class cannot be sustained. He urged us to hold that the trial court acted rightly by discharging the Ex-parte order.
Counsel for the 2nd Respondent also argued, in line with 1st Respondents submissions, on issues 2 and 3 and urged to dismiss the Appeal.
Appellant’s Replies, alleged to be on points of law, appears to be further arguments of the issues.
RESOLUTION OF ISSUES
I had the privilege of writing the lead Ruling on this same appeal, two months ago, when the 2nd Respondent sought to be joined as an interested party, to defend the action at the Court below and this appeal. I had stated on pages 25 to 26 of the Ruling as follows, while questioning the grounds upon which the Appellant opposed the application of the (now), 2nd Respondent to be joined in the suit, considering the claims of the Appellant at the lower Court:
“There can be no justification for such opposition, if the Appellant/Respondent seriously and sincerely lays, claims “to exclusive use and exploitation of DORCHESTER RTM No 62627 in class 34 dating back to September 23 1993 or any other identical or confusingly similar trade mark to the plaintiff’s Dorchester trade mark “Dorchester.” It should even be happy to find the person challenging its right and join him in the suit, for final and complete judicial settlement!.. the Appellant/Respondent had even extended its claims beyond the Respondent/Respondent, when it sought declaration against the defendant “and all persons on whose behalf it is sued…”, and had sought “A QUIA TIMET ORDER OF PERPETUAL INJUNCTION restraining the defendant and all those on whose behalf it is sued, whether acting by themselves, their Directors, Officers, Servants, agents or privies or otherwise howsoever from infringing or causing, enabling or assisting others to infringe the PLAINTIFF’S ‘DORCHESTER’ RTM No.62627 in class 34 dating back to September 25, 1993, or any other Trade mark identical or confusingly similar to he plaintiff’s Dorchester Trade mark, in importing, manufacturing, packaging for sale, offering for sale or supplying or distributing any cigarettes or tobacco related products or any products or services whatsoever.” The Appellant/Respondent even sought “Delivery up upon oath for destruction of all infringing ‘Dorchester’ cigarettes, all tools of trade and articles bearing ‘Dorchester’ or all other tools of trade and articles, in possession, custody or control of the Defendants or which may be in the custody of any of its contractors, suppliers or any other person whatsoever the use of which would be in breach of the injunctions prayed for… “
Having sued the 1st Respondent (who was the sole Defendant) “on its behalf and on behalf of, and representing all members of the class of Persons defined as engaged or taking steps to engage in trade or business of manufacturing importing, branding, marketing, distributing and selling cigarettes and tobacco products or wrapping materials branded as ‘Dorchester’ purporting to be the plaintiff’s by the adoption of the plaintiff’s Dorchester trade mark and device” and having sought declaration against the Respondent “and all persons on whose behalf it is sued… and order of perpetual injunction restraining the defendant and all those on whose behalf it is sued…” it was obvious that the Appellant had clear knowledge and understanding of the fact that the 1st Respondent was used as a bait to reach some other adversaries, well know to the Appellant, who would not allow the Appellant quiet and exclusive enjoyment of its alleged registered ‘Dorchester’ trade mark RTM No. 62627 in class 34, dating back to September 25, 1993, or any other Trade mark identical or confusingly similar to the plaintiff’s Dorchester trade mark in importing manufacturing, packaging for sale, offering for sale or supplying or distribution any cigarettes or tobacco related products or services whatsoever.”
Thus, while seeking judicial licence to be recognized as the holder/owner of the trade mark and entitled to the beneficial use, trade and profiting from the said ‘Dorchester’ trade mark, as against the 1st Respondent and others (on whose behalf the 1st Defendant was sued), the Appellant even extended its trade preying field to cover “any other trade mark identical or confusingly similar to the plaintiff’s Dorchester Trade Mark, in importing, manufacturing, packaging for sale, affering for sale, or supplying or distributing any cigarettes or tobacco related products or any products or services whatsoever! That shows Appellant as a very serious avaricious predator, that would not stand any competitor or neighbour in its business environment!
Though the Appellant had a clear picture of those he was seeking to use the Court order to overreach in the Ex-parte application (as later revealed in the 1st Respondent’s affidavits in support of the application to discharge the order), it did not have the courage to mention their names, and disclose to the Court that there were known rival/competitors with similar claims to Dorchester Trade Mark brand of cigarettes, with whom it was already fighting in Court over the same subject matter, for control! Appellant’s action was a deliberate decoy to hide the truth and misleads the Court to grant the Ex-parte orders.
The 1st Respondent has taken time to list the various cases pending in the Federal High Court, Lagos, whereof the Appellant sued Gallaher Ltd, etc. These are FHC/CS/12/5/2004, FCH/L/CS/179/2005 and FCH/L/CS/900/2010 whereof the Appellant was the plaintiff in the first two and, in the 3rd sued by Gallaher Ltd over the same subject matter-ownership etc of the same Dorchester Trade Mark! And, to know that the Counsel of the Appellant is this Appeal (or at the lower Court) is also counsel or one of the counsels of the Appellant in those other cases, is, indeed, a very sad commentary on the Counsel and the Appellant about their ill motive and intentions in their use of court process (es). Every party and counsel, in particular, is under a duty to be honest and transparent in the use of judicial process, as he is not expected or permitted to use the Court to defraud or over-reach an opponent, for any purpose/reason.It is sad that even after all the manifest revelations of the attempt by the Appellant to use Court process, via the exparte application, to overreach or defraud the 1st Respondent, and other persons, including the 2nd Respondent, the Appellant still argues to justify its conduct and tries to say that the facts it was accused of to have failed to disclose (or had suppressed) were not material facts within its knowledge! Or that they were not material within the context of this case
Having admitted the pendency of FCH/L/CS/1215/2004, FCH/L/CS/179/2005 and FCH/L/CS/900/2010 at Federal High Court, Lagos, over the same subject matter of right of ownership/use of Dorchester Trade Mark, what was the justification in coming to the Federal High Court, Ilorin, to sue the 1st Respondent over the same claim, and going behind the said 1st Respondent to obtain exparte orders to vest on them (Appellant) unfair exclusive right to the said trade mark, even before hearing the case, which, in the main, was for the same relief, and in doing so, hid from the court the fact of similar claims of exclusive right to the same subject matter by other persons whom Appellant had sued to Court in Lagos for the same purpose?
Appellant acted mala-fide and should be condemned for that. It was therefore proper that the learned trial court quickly reversed itself, on coming to know of the inglorious acts of the Appellant, and discharged the offending ex-parte orders, upon the application of the 1st Respondent.
What is really sad is that the Appellant’s Counsel, who is expected to act as a priest on the temple of justice, and to act clean and be on the side of truth and the Law, does not seem to see anything wrong with what the Appellant did. He does not appear to be advising the Appellant (an incorporated person) properly in the circumstances, by still maintaining that Appellant did nothing wrong and rather tried to indict the lower Court for discharging the exparte orders. He wants us to restore the offending exparte order, that is, give the Appellant judgment in the case, before even hearing it, and thereby give undue advantage, while the substantive cases are pending at Federal High Court Lagos and Ilorin!
Of course, that cannot be done as it would amount to legitimizing sharp practice. I expected the Appellant to bury its face in shame, on being exposed, and to seek penance, to purge itself of the graft, instead of coming here to seek res orating of the order.
I therefore resolve the issue one against the Appellant.
Issue 2 quarrels with the court for entertaining the 1st Respondent’s motion on notice to discharge the offending exparte order, when the 1st Respondent did not comply with order 7 Rule (10 and order 13 Rule 2 (1), requiring the Defendant to file memorandum of appearance and statement of defence to defend the main suit! Appellant claims that by filing a motion on notice to vacate the offending ex-parte order, the 1st Respondent disobeyed order 7 Rule (1)and order 13 Rule 2 (1)which they claim was condition precedent to 1st Respondent taking any other step in the case! I think that was quite a jaundiced view of the law. It is goes to confirm Appellant’s mischief in suppressing the facts to over reach the Respondents. Appellant would have liked the Respondent to go to the defending of the substantive matter, by filing memorandum of appearance and statement of defence, which the law allows it 30 days, etc, to do, instead of filing for the discharge of the ex-parte order!
Order 26 Rule 11 of the Federal High Court (Civil Procedure) Rules 2009, requires a party 7 days, on being served with the exparte orders, to take steps to discharge or vary it, if adversely affected by the order. I hold that the 1st Respondent acted rightly, within the law, by taking immediate steps to ward off the danger posed by the exparte orders, and that court was properly guided in its decision discharging the ex-parte order. No sane person is expected to start looking for his insurance documents to prepare for claims, when his house is catching fire, instead of taking steps to put off the fire first, he can only resort to the former, if the attempt to contain the fire, fails.
Issue-3 – I do not even thing this issue is worth any judicial time, as the Appellant did not appear to be serious in its quarrel with the Court for calling for address of the parties, suo motu, over the issue of cost for damages. Appellant had relied on order 31 Rule 1 of the Federal High Court (Civil Procedure) Rules, with respect to what conditions are to be fulfilled before the lower Court will be clothed with jurisdiction for an enquiry into assessment of damages in civil proceedings; that the same is subject to application by the defendant.
It appears Appellant forgot that when they took out the mischievous ex-parte application, its deponent had sworn to an oath to indemnify the Respondent in damages, in the event that the application turned out to have been improperly made. See paragraph 28 of the affidavit in support of the ex-parte motion. See page 279 of the Records There was therefore a pending application as to damages, volunteered by the Appellant, when it desperately sought the ex-parte orders. At the time the Court heard the motion on notice to discharge the ex-parte orders, the Court discovered that it had been wrongly used and misled to make the orders, which obviously, occasioned damages to the Respondent, and so was kind enough to call on the parties to address it on that undertaking before taking a decision (See page 576 of the Records):
“I will now invite the addresses of counsel on the inquiry as to damages, the plaintiff having undertaken in paragraph 28 of the affidavit of urgency sworn to by Sola Dosunmu to pay damages in the event that the ex-parte order ought not to have been made.”
I think, in such circumstances, the Appellant should rather praise the Court for giving it opportunity to address it on issue of cost to be paid for the damages caused by improperly procuring the orders of Court against the run of justice and to the detriment of opponent, as per its undertaking to pay for damages caused.
I can, however, not fault the magnanimity of the trial judge in the circumstances, even though, I think, it over indulged the Appellant in the circumstances, as the court would have been right to pronounce its award in damages, without seeking any address of Counsel. It is not in every situation that parties may be called upon to address the Court before the court can rule on a matter. See the case of Salman Abdulfatai and Anor Vs Aiyelabegan Kayode A & Ors: CA/IL/M20/2012 (an unreported decision of this Court) delivered on 28/5/12 page37-38 thereof; Mark vs Eke (2004) All FWLR (pt 200) 1455 at 1475 Effiom vs INEC (2012)14 NWLR (Pt 1225) 106 at 133-134
I hold that the trial Court did not breach any Rule of court by calling on the parties/counsel to address it on the issue of damages, suo motu, before taking a decision. In fact it cannot even be properly said that the issue was raised Suo motu by the Court, since the Appellant was the one that earlier raised it in its affidavit to procure the exparte orders, and left it hanging to haunt it. In the case of Olurunkule vs Adisun (2012) 6 NWLR (pt 1297) 407 held 2&3, my learned brother John Inyang Okoro JCA. On when a court could be accused of raising a matter Suo motu said: “A Court can only be accused of raising an issue suo motu, if the issue or matter of facts did not exist in the litigation: A court cannot be accused of raising an issue or a matter of fact suo motu if the issue or matter of fact exists in the litigation… A judge by nature of his adjudicatory functions can draw inferences from stated facts in a case, and by such inferences, the Judge can arrive at conclusions. It will be wrong to day that inferences legitimately drawn from facts are introduced suo motu. Equally, where a judge refers to a piece of legislature or rule of Court which assists him to exercise its discretion one way or the other, he cannot be accused of introducing the rule of court suo motu. (Ikenta Best Nig. Ltd Vs. A.G. Rivers State (2008) 6 NWLR (Pt.1084) 612 referred to.)”I therefore resolve the issues 2 and 3 also against the Appellants, and on the whole hold that the Appeal is completely devoid of merit and is accordingly dismissed as I uphold the Ruling of the learned trial Judge discharging the ex-parte order in the suit No. FCH/IL/CS/47/2010, made on 14/2/2011.
Appellant shall pay the cost this Appeal assessed at N50,000 00 (fifty thousand Naira) only, to the 1st Respondent.
TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Mbaba, JCA just delivered. His Lordship has meticulously and exhaustively treated all the live issues that call of determination in this appeal and rightly in my view resolved them in favour of the Respondent. I entirely agree with his reasoning and conclusions arrived thereat.
I too dismiss the appeal and abide by the order as to costs contained therein.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the lead judgment of my learned brother I.G. Mbaba, J.C.A. My Lord has characteristically dealt with all the issues that called for determination with utmost diligence and uncommon acuity in finally arriving at the conclusion that this Appeal is completely devoid of merit and should be dismissed with the ignominy it deserves. Where by the Affidavit in support of the motion to set aside the Ex-parte order of injunction, the 1st Respondent deposed to amongst other facts that the Appellant that:
(1). Gallaher Ltd had filed suit No. FHC/CS/1215/2004 to protect its interest in the Dorchester Trade Mark, the subject matter of this suit. Exhibit AB (pages 387 – 409 of the Records) which was the judgment of Shuaibu J. in the suit and it shows that on the day of the judgment, Kadiri Y.A. Esq, (leading counsel in this suit at the court below, who also settled the Motion Ex-parte) appeared in that suit!
(2). There is suit No. FHC/L/CS/179/2005 (Exhibit A9) which was instituted on behalf of the Appellant by the same Appellant’s counsel in this appeal, against the same company (Gallaher Ltd) and Wanovseas Ltd to challenge the certificate of registration of the Dorchester Trade Mark issued in favour of Wanovseas Ltd, as well as registration of assignment of the aforesaid certificate of registration to Gallaher Ltd. (see pages 412 – 429 of the Records).
(3). There is suit No. FHC/L/CS/900/2010 (Exhibit A10) which was instituted on behalf of Gallaher Ltd. against the Appellant to challenge the registration certificate issued in favour or Nigerian (Tobacco company as well as registration of the assignment of the certificate to the Appellant and the same Appellant’s counsel in this Appeal was the Appellant’s counsel in that suit – (page 431 – 438 of the Records).
(4). All these’ as well as other facts contained in the affidavit in support of the application upon which the court below discharged in the Ex-parte orders were not disclosed by the Appellant in the affidavit in support of the Motion Ex-parte, particularly as all the facts shown to have been suppressed were contained in the 2 distinct counter affidavits filed and served on the Appellant; the motion Ex-parte as filed by the Appellant in the High court of Kwara state, was a blatant abuse of court process in that apart from his being guilty of forum shopping, the Appellant initiated the motion with sinister and deliberate motive of proliferating frivolous, vexatious or oppressive proceedings against the 1st Respondent.
From the foregoing, it is to say the least an improper use and perversion of the process of court for the sole aim of obtaining an unlawful and unwarranted or properly attainable result when the Appellant filed the process in the Lower court knowing full well that there were pending proceedings between him and the 1st Respondent at the Federal High Court Lagos.
In African Reinsurance corporation v. JDP Construction Nigeria Ltd. (2003) 5 SCMJ 104 at 121 paras F-G; Per Tobi, JSC had held that: “Abuse of process of court is a term generally applied to a proceeding which is wanting in bona-fide and is frivolous, vexatious or oppressive. Abuse of process as in this case means abuse of legal procedure or improper use of legal process. An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system. There is said to be an abuse of the process of the court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions as in the instant case. (Amaefule v. State (1988) 2 NWLR (Pt.75) 156, Okafor v. Attorney-General and Commissioner for justice (1991) 6 NWLR (Pt.200) 659; Edet v. The State (1988) 4 NWLR (Pt.91) 722, Messrs. NV Scheeep v. The MV “Saraz” (2000) 15 NWLR (pt.691) 622). NTUKS & Ors. v. NPA (2007) 13 NWLR (Pt.1051) 392 at 419 – 420 paras. H-C”.
Again, in C.A. Banjo & Ors v. Eternal Sacred Order of Cherubim and Seraphim (1975) 3 S.C. 37 at 42; the Supreme Court defined the term “abuse of court process of court” to connote that the process of the court must be used only bonafide and not improperly as a means of vexation and oppression. It was further held that apart from specific provisions of the Rules of the Supreme Court, the courts generally have always exercised their inherent jurisdiction of striking out or otherwise disposing brevi manu of any matter or causes before it which is an abuse of its process. See further per Oputa, J.S.C. in Amaefule & Anor v.The State (1988) 2 NWLR 156 at 117. In the case at hand, where the Court below discovered upon hearing the 1st Respondent’s Application to set aside the motion Exparte initiated by the Appellant, that same was initiated malafides and that the Appellant indeed hid certain salient facts which if brought to the notice of the Court when the Application was heard, could have dissuaded it from granting such an Application; the Court even without asking had the jurisdiction to set aside the Ex-parte Order of injunction against the Respondent.
To worsen the situation, the Appellant did not deny the pendency of suit Numbers FCH/CS/119/2005, FCH/CS/900/2010 and FCH/L/CS/1215/2004 at the Federal High Court Lagos over the same matter where on the same facts and circumstances these suits were pending before the Appellant left to Ilorin to file the suit the subject of this Appeal herein.
On the authorities cited above and those cited by my learned brother including the more elaborate reasons in the lead judgment, I agree totally with my Lord that this Appeal is unmeritorious should be dismissed and I so do. I abide the order as to costs.