International Tobacco Nigeria Ltd v. British American Tobacco Nigeria Ltd. & Anor
Court of Appeal
Ilorin Judicial Division, holding at Ilorin
Judgement delivered on Thursday, April 18, 2013
Citation: 56 NIPJD [CA. 2013] 43/2012
Suit No. CA/IL/43/2012 Jurisdiction: Nigeria
BEFORE THEIR LORDSHIPS
PAUL ADAMU GALINJE, J.C.A.
HUSSEIN MUKHTAR, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Lead Judgement)
Appearances: I. O. Akanmidu, for the Appellants
Dayo Ayoola Johnson, (with him, Gbenga Bello) for the Respondents
INTERNATIONAL TOBACCO CO. PLC (Appellants)
1. BRITISH AMERICAN TOBACCO (NIG.) LTD (Respondents)
2. BENSON & HEDGES OVERSEAS LTD
This appeal is an offshoot of the decision of the Federal High Court, Ilorin Division, Coram A. O. Faji, J., in Suit No. FHC/IL/CS/20/2012 wherein some interim orders were made in favour of the respondents. The facts of the case in the lower court, which culminated in this appeal, are very succinct. The appellant and the respondents are into tobacco manufacturing and distribution in Nigeria. The respondents and the appellant were the plaintiffs and defendant in the lower court respectively. The respondents claimed that sometime in February 2012, they discovered that the appellant manufactured, distributed and sold “Gold Bond” brand filter cigarettes in gold colour which infringed their exclusive and distinctive use of the get-up, device and design of gold colour for their “Benson & Hedges” brand of filter cigarettes. They further claimed that the appellants “Gold Bond” filter cigarettes were being sold in Ilorin, Ibadan, Lagos and their environs.
Consequently, the respondents, on 18/4/2012, took out a writ of summons and a statement of claim wherein they claimed, against the appellant, several declaratory and injunctive reliefs for infringement and passing off of their proprietary trade mark rights in their “Benson & Hedges” filter cigarettes. The respondents, on the same 18/4/2012, contemporaneously, filed a motion ex-parte in which they prayed the lower court for seven (7) interim and anton pillar orders of injunction against the appellant. On 19/04/2012, the respondents’ ex-parte application was moved. The lower court granted the seven (7) substantive prayers in the application as shown on pages 179 - 182 of the printed record of appeal. The appellant was dissatisfied with the decision of the lower court. As a result, it filed a two-ground notice of appeal, on 03/05/2012, found on pages 197 - 200 of the record and prayed this court for: “An order setting aside the decision of the court below.” Sequel to that, parties filed and exchanged their briefs of argument in consonance with the Rules of this court.
Thereafter, the appeal was heard on 18/03/2013. In that regard, I. O. Akanmidu, Esq., adopted the appellant’s brief of argument and its reply brief of argument, filed on 19/12/2012 and 11/03/2012 respectively settled by Olaseni Oyefeso, Esq., as representing his arguments in support of the appeal. He prayed the court to allow it. Similarly, Dayo Ayoola-Johnson, Esq., adopted the respondents’ brief of argument, filed on 08/02/2013, Mrs. Funke Agbor, but deemed filed on 25/02/2013, as forming his arguments against the appeal. Learned Counsel urged the court to dismiss the appeal.
The appellant, in its brief of argument, crafted two issues for determination of this appeal to wit:
“1. Whether the affidavit in support of the Ex-parte Motion by which the court below granted interim orders in favour of the Respondents discloses any situation of extreme urgency.
2. Whether a trial judge can safely conclude that the brand packing adopted for a product by a party infringes or is capable of being passed off as the product of an applicant based on affidavit evidence and exhibits attached to affidavits without hearing evidence at proper trial.”
On their part, the respondents, in their brief of argument, distilled a lone issue for determination of the appeal, viz:
“Whether having regard to the materials before the court, it was proper for the court below to protect the statutory rights of the Respondents by granting interim orders in a case where a prima facie case for the grant of Anton Pillar Order has been made out and unchallenged.”
I have juxtaposed the appellant’s issues for determination of the appeal with that of the respondents. It is my view that the two sets of issues are symmetrical such that the respondents’ solitary issue can conveniently be subsumed under the appellant’s two issues. This is more so, when the respondents responded to these two issues. On this score, I will consider the appeal on the footing of the appellant’s issues for determination. After all, it is the appellant that is peeved by the decision of the lower court.
Arguments on the issues:
Learned counsel for the appellant submitted that an existence of a situation of real urgency is a critical rationale for a grant of ex-parte applications and it is the materials in the affidavit in support of such applications that guide the court in deciding whether the applicant delayed or not. He posited that an ex parte applicant, in the affidavit in support of the ex parte application, must disclose: the date the events sought to be restrained occurred, the imminent danger that will occur to him before hearing, should the adversary be put on notice, the date of the application and that there is a proper case for a grant of interim restraining orders. He placed reliance on the cases of Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419;; Odutola v. Lawal (2003) 1 NWLR (Pt.749) 633;; Unibiz (Nig.) Ltd v. CBCL Ltd. (2003) 6 NWLR (Pt.816 (sic. 861) 402 to support his submissions. He posited that the interim orders made by the lower court, particularly interim orders 2 and 3, fell short of the requirements for the grant of ex-parte injunctions as prescribed by law.
Learned counsel referred to the averments in paragraphs 11, 29, 31 and 32 of the affidavit in support of the ex-parte application and contended that the respondents did not satisfy the real urgency test because: there was no mention of a clear date of the alleged infringement, there could be no real urgency if an event occurred in February, 2012 and the respondents came to court in April, 2012, the lower court was not guided as to when the event sought to be restrained occurred nor was it suggested to it that an irreparable damage would be caused to the respondents if orders 2 and 3 were not granted. He further submitted that the lower court, at best, should have granted “Orders 4 - 7” in order to safeguard pieces of evidence which were likely to be destroyed by the appellant before the commencement of trial and set down the facts in issue which were solely connected to orders 2 and 3 for trial by way of accelerated hearing. He maintained that no orders of injunction could be rightly made where an applicant failed to show a situation of real urgency. He relied on the cases of Boston NA USA v. Adegoroye (2000) NWLR (Pt.215) 222;; Attamah v. Anglican Bishop of the Niger (1999) 12 NWLR (sic. No part) 6 at 13.
For the respondents, learned counsel, by way of preliminary points, noted that the appellant’s complaints, as disclosed in its notice of appeal and arguments, were directed at interim orders 2 and 3. He insisted that it was wrong for the appellant to complain against the whole decision and pray for the setting aside of all the orders made by the lower court since orders 1, 4, 5, 6 and 7 were not attacked by the appeal nor the issues and so remained valid. He cited the cases of Oshodi vs. Eyifunmi (2000) 13 NWLR (Pt.684) 298;; Okonkwo v. INEC (2004) 1 NWLR (Pt.854) 242;; Ezeazodosiako v. Okeke (2005) 16 NWLR (Pt.952) 612;; Agidigbi v. Agidigbi (1992) 2 NWLR (Pt.221) 98. He took the view that the court lacks the jurisdiction to interfere with orders 1, 4, 5, 6 and 7 which are not appealed against.
Learned counsel submitted that the cases cited by the appellant were applicable to interim injunction generally and not trade marks infringement which was the respondents’ primary cause of action at the lower court. He noted that damages are not limited to pecuniary, commercial or economic losses, but total destruction of goodwill which the trade mark has acquired over the year. He persisted that the respondents showed that they would suffer irreparable damage if the interim orders were not granted. He referred to paragraphs 9, 10, 14, 19, 29, 27 and 28 of the affidavit in support of the ex-parte application.
He further submitted that the legal right a proprietor has to use the device or trade mark or copyright is recognized in section 5 of the Trade Marks Act, Cap. T13, Laws of the Federation of Nigeria, 2004. He added that the provision confers a statutory legal right worthy of protection on infringement and establishment of a prima facie case by a registered owner of the trade mark. He relied on the case of America Cyanamid Co. v. Ethicon Ltd (1979) F.S.R. 466. He noted that the respondents went to court for the protection of their legal right to the exclusive of the registered trade mark. He placed reliance on the cases of Omnia Nig. Ltd v. Dyktrade Ltd (2007) 15 NWLR (Pt.1058) 622; Dyktrade Ltd v. Omnia (Nig) Ltd (2000) 12 NWLR (Pt.690) 1. He referred to the nature of anton pillar orders, the grant of which the appellant conceded, as expounded by Fidelis Nwadialor, SAN in Civil Procedure in Nigeria, 2nd Edition, page 569;; Chief Afe Babalola, SAN in Injunction and Enforcement of Orders, page 141. He insisted by the nature of anton pillar orders, the court accords the hearing with expedition as the urgency is apparent in that specie of application which is aimed to prevent the destruction of infringing properties which would serve as evidence in court. He cited the cases of Anton Pillar Kg. v. Manufacturing Processes (1976) 1 ALL ER. 779;; Canada Private Copying Collective v. Amico Imaging Service Linc (2004) F.C.J. No. 570 to support his postulation;; insisting that the affidavit disclosed real urgency to warrant the grant of the interim orders.
Learned Counsel contended that the affidavit in support of the ex-parte application showed that the respondents were the registered owners of the trade marks in “Benson & Hedges” which the appellant infringed and that these facts demonstrated a strong prima facie case as required by law to grant ex parte interim orders restraining the appellant from further infringement. He relied on paragraphs 7, 8, 9, 16, 17, 18, 20, 22, 23 and 30 of the said affidavit and exhibits SD1 to SD12 attached to the affidavit.
He further contended that paragraph 38 of the affidavit stated why the court must act with urgency while paragraphs 37, 38, 39 and 40 showed irreparable damage that could not be remedied by way of monetary damages if the orders were not granted. He cited the case of Oduntan v. General Oil Ltd (1995) 4 NWLR (Pt.387) 1, to buttress his contention. He informed the court that the appellant had not accused the respondents of delay in bringing the application. He stated that it is not the requirement of the law for an applicant asking for a grant of an interim order to state the exact date and time the act complained of was noticed;; adding that it was enough for the respondents to state the month they noticed the infringement which were being perpetrated in many locations in the country.
Learned counsel postulated that the key reason for a grant of interim injunctions is to protect the res - the registered trade mark, which has been upheld by the court as distinctive to the respondents, and the goodwill it has generated overtime. He insisted that there was continued dilution of the trade mark on a continuing basis so that it became necessary for the court to stop the infringement to avoid the destruction of the res before the conclusion of the trial. He relied on paragraph 41 of the affidavit and on the cases of Anton Pillar KG v. Manufacturing Processes Ltd (supra) and Ferodo v. Unibros (1980) FSR 489 to support his postulation.
On points of law, learned counsel for the appellant submitted that there must exist real urgency before a grant of interim orders even if an applicant had legal and statutory right connected to some trade marks. He state that the cases of America Cyanamid Co v. Ethicon Ltd (supra) and Omnia Nig. Ltd v. Dyktrade Ltd. (supra) involved inter parties injunctions not ex-parte injunction and so inapplicable to the case. He relied on the cases of Clement v. Iwuanyanwu (1989) 2 NWLR (Pt.107) 39 and Fawehinmi v. UBA (No.2) (1939) 2 NWLR (Pt.105) 588 to support his submissions. He explained that different principles apply to grants of anton pillar orders and interim orders and the latter could only be granted on situations of extreme urgency. He maintained that interim injunctions could be granted where there was extreme urgency such that irreparable damage which could not be compensated for in damages would be done to an applicant before the date fixed for hearing of the motion on notice for interlocutory injunction. He placed reliance on the cases of UTB Ltd v. Dolmetsch Pharm. (Nig) Ltd. (2007) 16 NWLR (pt.1061) 520;; Unibiz (Nig.) Ltd v. CBCL Ltd (2003) 6 NWLR (Pt.861) 402;; Extraction System Commodity Services Ltd. v. N.M.B. Ltd (2005) 7 NWLR (Pt.924) 215;; Igbinoba v. Igbinoba (2003) 2 NWLR (Pt.803) 39 to support his submissions.
Issue two: Learned counsel for the appellant submitted that prayers 2 and 3 in the respondents’ ex-parte application, which were granted, were similar in nature to the reliefs ii (c) and ii (b) in their writ of summons and statement of claim respectively. He posited that the lower court considered the ex parte application in relation to the materials in the affidavit as well as exhibits attached to paragraph 22 thereof and SD 10 before granting the prayers 2 and 3 in the application. He insisted that the lower court granted the reliefs in the writ of summon and statement of claim of the respondents without taking evidence at trial. He reasoned that the prayers and the interim orders that flowed therefrom were substantive in nature because: the lower court truncated the appellant’s business based on mere allegations made by the respondents, and, concluded without hearing the appellant, that the packing of the “Gold Bond” cigarettes infringed or passed off as “Benson & Hedges” cigarettes. He persisted that, in view of the similarity in the prayers in the ex parte application and the substantive matter, the best course for the lower court was to go straight and deal with the substantive matter by way of accelerated hearing. In support of his submissions, he referred to the cases of: Okpokiri v. Okpokiri (2000) 3 NWLR (Pt.649) 461;; Daniel Ogbonnaya v. Adapalm Nig. Ltd. (1993) 5 NWLR (Pt.292) 147;; Akapo v. Hakeem Habeeb (1992) 6 NWLR (Pt.247) 266. Learned counsel, based on those submissions, urged the court to allow the appeal.
On behalf of the respondents, Learned Counsel argued, per contra, that the cases of Okpokiri v. Okpokiri (supra);; Daniel Ogbonnaya v. Adapalm (Nig.) Ltd (supra) and Akapo v. Hakeem Habeeb (supra) were inapposite to the case in hand which dealt with infringement of a trade mark as opposed to the former which related to title or enjoyment of benefits attached to land. He reiterated the point that the lower court granted the orders upon satisfaction of a prima facie case of infringement of the respondents’ legal right. He added that the appellant had the chance to show cause at the hearing of the interlocutory application why the interim injunctions must be vacated.
Learned counsel further argued that the lower court made no pronouncement that might prejudge the case at the trial. He stated that all the lower court did was to consider the materials before it at the time the ex parte orders were made. He enumerated those materials as: certified copies of the certificate of registration of the respondents’ trade marks, certified true copies of the judgment of this court and the lower court which decided that the gold colour was distinctive and exclusive to the respondents. He took the view that the pieces of evidence were more than compelling to protect the rights of the respondents from any other acts of infringement or passing off on an interim basis. He persisted that the lower court did not make any order that would suggest any determination of any of the substantive issues. Learned counsel, on the strength of those submissions, urged the court to dismiss the appeal.
Resolution of the issues. In attending to the two issues for the determination of the appeal, I will take them sequentially. To this end, I kick-start with issue one. The nucleus of issue one is whether the respondents’ affidavit contained facts demonstrating extreme urgency to warrant the grant of their ex-parte application.
By way of necessary prefatory remarks, the respondents’ ex-parte application, whence the appeal germinated from, is, deeply, rooted in the realm of equitable remedies. The application, therefore, solicited for the lower court’s judicial discretion which, in law, is the power or right of a judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman vs. C.O.P., Pleateau State (2008) 8 NWLR (Pt.1089) 298;; Ajuwa v. SPDCN Ltd (2011) 18 NWLR (Pt.1279) 797;; Akinyemi v. Odu’a Inv. Co. Ltd (2012) 17 NWLR (Pt.1329) 209.
Being an appeal to the judicial discretion of the lower court, it was incumbent on the respondents, as the applicants, to furnish it, if they must earn its favourable discretion, with sufficient material facts that it would use, as the springboard to exercise its discretion judicially and judiciously. The reason is plain. A court of law does not dish or dash out its discretion in vacuo. Material facts are the desiderata for such judicial exercise, see Dongtoe v. Civil Service Commission, Pleateau State (2001) 9 NWLR (Pt.717) 132;; Manakaya v. Menakaya (2001) 16 NWLR (Pt.738) 293;; Ebe v. C.O.P. (2008) 4 NWLR (Pt.1076) 189;; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt.1111) 58;; In Re: Yar’Adua (2011) 17 NWLR (Pt.1277) 567. I am of the clear view that the respondents woke of that judicial responsibility when they filed a 47-paragraph affidavit, deposed to by Sola Dosunmu, covering pages 6 - 16 of the cold record of appeal.
The appellant has launched vitriolic attacks on interim orders 2 and 3, made by the lower court, predicated on the respondents’ ex-parte application brought it. The peculiar/distinctive features and requisite conditions for granting ex-parte applications are encapsulated in the illuminating pronouncement of Nnaemeka-Agu, JSC, in the landmark case of Kotoye v. CBN (supra)/(1989) 2 SC (pt.1) 1. In that locus classicus on ex-parte application, the eminent law Lord, of the blessed memory, at page 440 thereof, lucidly, stated:
“I think it is correct to say that “ex-parte” in relation to injunctions is properly used in contradistinction to “on notice” - and both expressions, which are mutually exclusive, more strictly rather refer to the manner in which the application is brought and the order procured. An applicant for a non-permanent injunction may bring the application ex-parte that is without notice to the other side or with notice to the other side, as is appropriate. By their very nature injunctions granted on ex-parte applications can only be properly interim in nature. They are made, without notice to the other side, to keep matters in status quo to a named date, usually not more than a few days, or until the respondent can be put or (sic) notice. The rationale of an order made on such an application is that delay to be caused by proceeding in the ordinary way by putting the other side on notice without or might cause such an irretrievable or serious mischief. Such injunctions are for cases of real urgency. The emphasis is on “real”.
See, also, Unibiz (Nig) Ltd v. C.B.C.L. Ltd (supra);; Attamah v. Anglican Bishop of the Niger (1999) 12 NWLR (Pt.633) 6;; U.T.B. Ltd v. Dolmetsch Pharm (Nig) Ltd. (supra);; A.I.C. Ltd v. NNPC (2005) 1 NWLR (Pt.937) 563;; Ajewole v. Adetimo (1996) 2 NWLR (Pt.431) 391;; Ideozu v. Ochoma (2006) 4 NWLR (Pt.970) 364;; Group Danone v. Voltic (Nig) (2008) 7 NWLR (Pt.1087) 637;; 7-Up Bottling Co. Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (Pt.383) 257.
Now, it behoves this court, as a primary duty, to determine whether the respondents’ affidavit met the outlined hallmarks and pre-conditions for the grant of the ex parte application by the lower court. Put simply, whether the lower court exercised its judicial discretion judicially and judiciously given the available materials placed before it by dint of the respondents’ affidavit. In this wise, I will pay an expected visit to the respondents’ affidavit, occupying pages 6 - 16 of the record, with a view to deciphering if it showcased extreme urgency. I have read, with a fine tooth comb, the expansive and wordy 47 -paragraph affidavit with the accompanying documents attached as exhibits. I discerned from it that paragraphs 11, 31, 38, 39 and 40 of the affidavit come in handy and are reproduced, verbatim ac litteratim, thus:
“11. Sometimes in 2012, the 2nd Plaintiff/Applicant discovered that the Defendants’ brand of the “Gold Bond” filter cigarettes were being manufactured and distributed and offered for sale in Ilorin, Ibadan, Lagos and its environs.
31. That upon being made aware of facts deposed to in paragraphs 29, and 30 above, I on behalf and sought advice on how the infringement and passing off of its products could be arrested and also instructed the law firm to take necessary and appropriate action.
38. If the infringement/passing off acts of the Defendants and all persons on whose behalf they are sued are not immediately and urgently restrained the Plaintiff/Applicants will suffer enormous damages, harm and loss of goodwill which the Defendants and persons on whose behalf they are sued would not be in a position to repay and or remedy.
39. The use and continued sale of the “Gold Bond” products by the Defendants and all persons on whose behalf they are sued in the current get-up package, design and devices will dilute the brand value and customer preference of the “Benson & Hedges” trade mark in Nigeria and could have a catastrophic effect on the plaintiff/Applicants’ corporate image in Nigeria and worldwide.
40. If the Plaintiff/Applicants do not protect their intellectual property rights vigorously and timeously, it is extremely likely that other persons with fraudulent intent may start to invade the Plaintiff/Applicants’ intellectual property rights including the get-up package, design and devices and word “Benson & Hedges.”
It can be gleaned from the above extracted and displayed averments that the respondents became aware of the infringement or passing-off of their registered trade mark sometime in February, 2012. The respondents, without prompting from the appellant, employed the word “sometime”. The word, “sometime” an adverb, connotes: “at some not specified or definitely known point of time”, see Webster’s New Explorer Encyclopedic Dictionary, Page 1755. In other words, “sometime” is hostile to time accuracy. It means that the respondents were not certain as to the date or day they had knowledge of the appellant’s infringement of their registered trade marks in the month of February, 2012. That was not diligent enough for a party yearning for orders in an ex-parte application. The exact date or day is crucial. It would have assisted the court in knowing when the respondents’ cause of action accrued vis-a-vis the date they accessed the lower court for redress.
Be that as it may, I will, in the avowed desire to do evenhanded justice, draw the inference that the “sometime” referred to the last day in February, 2012. That is to say, the respondents were in the know about the infringement on 29/02/2012. The law gives me the licence to draw such an inference, see Akpan v. Bob (2010) 17 NWLR (Pt.1223) 421. The last day of February, 2012, which I ascribed to the respondents on when their cause of action arose, is the most beneficial construction they can get out of the nebulous word “sometime”. The respondents approached the lower court, via their ex parte application, on 18/04/2012. From the last day of February, 2012, when they became conscious of the alleged malfeasance or wrong against their registered trade mark, to 18/04/2012, when they accessed the lower court, was a period of about 47 days. Indisputably, a period of 47 days in lunar computation is a pretty long time, far in excess of a month and half.
I decided to go far, in calculating the period of time involved, to demonstrate that the respondents, to my mind, were grossly guilty of inordinate delay in bringing their ex-parte application on discovering the appellant’s passing off of their registered trade mark. The respondents’ act of procrastination in filing the application runs foul of the settled position of the law. It is trite that an applicant, like the respondents, who is tardy in bringing an ex-parte, amply, demonstrates the absence of any urgency necessitating prompt relief, see Kotoye v. CBN (supra);; Ajewole v. Adetimo (supra);; Ideozu v. Ochoma (supra).
As already noted, at the cradle of the resolution of this issue, the respondents’ application finds anchorage in the province of equitable remedies. The respondents are caught in the intractable mire of the equitable maxims, delay defeats equity and equity aids the vigilant and not the indolent, vigilantibus et non dormientibus jura subveniut. Those maxims still hold sway in the corpus of our laws, see, In Re: Yar’Adua (supra);; F.H.A. v. Kalejaiye (2010) 19 NWLR (Pt.1226) 147. It follows that equity, which hosts the respondents’ ex parte application, has no patience for a person who relishes in dilatory attitudes. In the end, I find that the respondents, by their own showing, clearly, romanced with delay which defiled any iota of urgency or emergency that required prompt relief in terms of ex-parte orders.
In second place, the real urgency envisaged by law was captured by Nnemeka-Agu, JSC, in the remarkable case of Kotoye v. CBN (supra), at 440 thereof, when he opined:
“What is contemplated by the law is urgency between the happening of the event which is sought to be restrained by injunction and the date the application could be heard if taken after due notice to the other side. So, if an incident which forms the basis of an application occurred long enough for the applicant to have given due notice of the application to the other side if he had acted promptly but he delays so much in bringing the application until there is not enough time to put the other side on notice, then there is a case of self-induced urgency, and not one of real urgency within the meaning of the law.This self-induced urgency will not warrant the granting of the application ex-parte”.
See, Unibiz (Nig) Ltd v. C.B.C.L. Ltd (supra);; U.T.B. Ltd v. Dolmetsch Pharm. (Nig.) Ltd (supra);; Ideozu v. Ochoma (supra).
To begin with, I have, aggressively and assiduously, searched through the whole length and breadth of the respondents’ prolix affidavit, but, alas, I fail to locate averments connecting it with real urgency in the manner ordained by law. It flows that, the entire gamut of the respondents’ affidavit is, totally, void/bereft of any facts relating to any urgency or emergency that would occur between 29th February, 2012 and the date their motion on notice for interlocutory injunction could be heard. I had just found, a solemn finding there are no extenuating circumstances to disturb as it was reached after due consultation with the law, that the respondents dithered for about 47 days before bringing their application, months after they discovered the alleged infringement of their registered trade mark. Put the other way round, the incident which formed the substratum for the application happened long enough for the respondents to have given due notice of the application to the appellant, but they, in their infinite wisdom, deliberately waited until there was no sufficient time to notify it. The respondents’ conduct, x-rayed above, is a paradigm of self-induced urgency which the law, wholly, frowns upon. The respondents invented the urgency, manipulated the events, unrelated to the realities of the antecedent events, which cannot form the bases for a grant of ex parte application. The ex-parte application must sink with the self-inflicted urgency, constructed by the respondents, which is not cognisable in law.
For completeness, the respondents placed high premium on the cases of Dyktrade Ltd v. Omnia (Nig.) Ltd. (supra) and Omnia (Nig) Ltd v. Dyktrade Ltd (supra) in the scintillating arguments on this issue. I have given an intimate reading to the two cases. They do not deal with the legality or otherwise of granting orders on an ex parte application which is the hub of this appeal. Put starkly, the facts of those cases are distinguishable from those of the case in hand. It is settled that the doctrine of stare decisis or judicial precedent, which formed the plinth upon which the respondents implored this court to follow the decision in those two authorities, flourishes where facts of cases are on all fours, see Clement v. Iwuanyanwu (supra);; Fewehinmi v. NBA (No.2) (supra);; Osakue v. FCE, Asaba (2010) 10 NWLR (Pt.1201) 1. On this premises, I will dishonour the invitation of the respondents, to adopt the decision in those cases, for want of harmony in their facts and the instant appeal.
In the light of these dissected legal expositions, I am of the firm view that the respondents’ affidavit, though verbose, is nude in terms of disclosure of material factual circumstances pointedly revealing extreme or real urgency. The net effect of that irremediable and irredeemable defect is not a moot point. It is that the respondents, ex parte application, particularly orders 2 and 3 made thereunder, was granted by the lower court in utter transgression and desecration of the hallowed principles and preconditions which are prerequisites for its proper grant. In the result, I endorse the alluring submissions of the appellant which, to all in tents and purposes, are superior to the weak arguments of the respondents on the issue. In all, I resolve issue one in favour of the appellant and against the respondents.
Having done away with issue one, I proceed to handle issue two. The meat of the issue, garnered from the arguments of the appellant, is that the interim orders 2 and 3, granted by the lower court, determined the substantive reliefs ii (c) and (b) respectively solicited in the respondents’ statement of claim. It is settled law, in a galaxy of judicial authorities, that a court of law is drained of the jurisdiction to delve into substantive reliefs and make pronouncements that will have the effect of determining them at an interlocutory stage, see, Kotoye v. CBN (Supra): Daniel Ogbonnaya v. Adapalm (Nig.) Ltd. (supra);; Group Danone v. Voltic (Nig.) Ltd (supra);; Omnia (Nig.) Ltd v. Dyktrade Ltd (supra);; Oduntan v. General Oil Ltd. (supra);; Falowo v. Banigbe (1998) 6 SCNJ 42;; Akpo v. Hakeem - Habeeb (supra);; Agip (Nig) Ltd v. Agip Petroli Int’l (2010) 5 NWLR (pt.1187) 48;; E.F.P. Co. Ltd. v. NDIC (2007) 3 SC (Pt.1) 178 or (2007) 9 NWLR (Pt.1039) 216;; Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt.1209) 518;;Oyunwo v. Woko (2011) 17 NWLR (Pt.1277) 522.
The two interim orders 2 and 3, being castigated and sought to be impugned by the appellant, are found on page 188 of the record. The two substantive reliefs which those orders are alleged to have determined in limine are on page 171 of the record. At the expense of prolixity, but borne out of necessity and for easy reference and comprehension, I will cull out those orders and reliefs from the record in the manner following:
“(2) An order of interim injunction is hereby granted restraining the Defendants whether jointly and severally and all persons on whose behalf the Defendants are sued whether by themselves, their Director(s), Officer(s), Servant(s), Agent(s), Privies or any of them or otherwise howsoever from manufacturing, importing, selling or offering for sale or supplying cigarettes known as “Gold Bond” purporting same to be the plaintiffs’ by adopting the get-up package, design and devices similar to the plaintiffs’ “Benson & Hedge” brand of cigarette in respect of trademark registered as No.60722 in class 34 (ONLY) at the Trademark Registry, Abuja, Nigeria, pending the hearing and determination of the motion on notice for interlocutory injunction.
(3) An order of interim injunction is hereby granted restraining the Defendants whether jointly and severally and all persons on whose behalf the Defendants are sued whether by themselves, their Director(s), Officer(s), Servant(s), Agent(s), Privies or any of them or otherwise howsoever from passing off or attempting to pass off or causing, enabling or assisting others to pass off “Gold Bond” brand of cigarette as and for the Plaintiffs “Benson & Hedges” brand of cigarette by adopting the get-up package, design and devices similar to the plaintiffs “Benson & Hedge” brand of cigarette pending the hearing and determination of the motion on notice for interlocutory injunction.”
“ii. AN ORDER of perpetual injunction restraining the Defendants and each of those on whose behalf they are sued whether by themselves, their Director(s), Officer(s), Servant(s), Agent(s), Privy(ies) or any of them or otherwise however from doing the following acts namely:
(b) Passing off or attempting to pass off or causing, enabling or assisting other to pass off “Gold Bond” brand of cigarette as and for the plaintiffs “Benson & Hedges”, brand of cigarette by adopting the get-up package, design and devices similar to the Plaintiffs “Benson & Hedges” brand of cigarette.
(c) Manufacturing, importing, selling or offering for sale or supplying cigarettes known as “Gold Bond” purporting same to be the plaintiffs’ by adopting the get-up package, design and devices similar to the plaintiffs’ “Benson & Hedges” brand of cigarette.
” I have situated the two interim orders and the two substantive prayers so as to ascertain if the grant of the former determined the latter. An indepth and microscopic examination of the two orders and the two reliefs reveals that they are, in substance, identical, a mirror image of themselves even though they are not couched word for word. Nevertheless, at the terminus of the two allegedly offensive interim orders, there is a rider: “pending the hearing and determination of the motion on notice for interlocutory injunction.” To start with, that qualification implies that the respondents filed a motion on notice simultaneously with their ex parte application. Although, the said motion on notice is not made part and parcel of the record, however, the law gives me the unbridle mandate to draw the inference, see Akpan v. Bob (supra). The inference consists of the snag attached to the two orders and the depositions in paragraph 45 of the respondent’s affidavit on page 15 of the record.
Besides, the caveat, “pending the hearing and determination of the motion on notice for interlocutory injunction”, advertises and recognises the law that the two orders, like all such orders made pursuant to an ex parte application, are not to last ad infinitium. In the eyes of the law, the lifespan of an interim order of injunction is very brief as diametrically opposed to that of perpetual injunction that thrives for all eternity. The two interim orders were made to last till the determination of the motion on notice. That is quite in accord with the law;; see Kotoye v. CBN (supra);; Unibiz (Nig) Ltd v. C.B.C.L. Ltd (supra);; Group Danone v. Voltic (Nig.) Ltd (supra). Since the two interim orders of injunction are not made absolute, but their existence is, clearly, qualified and abbreviated in keeping with the tenets and spirit of the law on ex-parte orders, they have not resolved the two substantive reliefs as to insult the law.
The appellant, amazingly, picked quarrel with the lower court’s utilisation of exhibit SD10 in considering the ex-parte application and granting the interim orders 2 and 3. I find no jot of substance or force in that seemingly enticing argument. Perhaps, the appellant is oblivious of the cold fact that it took the legally justified/accepted stance, under issue one, that the affidavit was the compass to guide the lower court in granting the application. To my mind, the appellant’s volte-face regarding the utility value of the affidavit, under this issue two, smacks of approbating and reprobating, a behaviour that is quite unfriendly to the law, see A.G., Rivers State v. A.G., Akwa Ibom State (2011) 8 NWLR (Pt.1248) 31;; Adeogun v. Fasogbon (2011) 8 NWLR (Pt.1250) 427.
The law does not give the lower court the latitude to forage for extraneous evidence, in the form of facts and documents, in the course of considering the ex parte application. All in all, the appellant’s contention on the issue stands on quicksand, totally divorced from the position of the law. Given the foregoing reasons, I resolve issue two in favour of the respondents and against the appellant.
By way of summation, I have, on the one hand, resolved issue one in favour of the appellant and, on the other hand, I resolved issue two in favour of the respondents’ let me place on record, pronto, that the respondents merely scored a pyrrhic victory in issue two. The reason is not far-ferched. The issue one is the keystone of the appeal and has the potency to determine its fate.
It remains to add, apace, that the appellant’s grouse was against the entire decision of the lower court delivered on 19/04/2012. However, it is germane to observe that in the appellant’s particular (d) to ground 1 in the notice of appeal, seen on page 198 of the record, it conceded, wholeheartedly, that the anton pillar orders could be granted “without necessarily granting over reaching orders of injunction.” That apart, in the appellant’s brief of argument, it conceded, without reservations, that the lower court was right in law in granting the anton pillar orders, orders 4 - 7, embedded on pages 188 - 191 of the record. In the appellant’s dazzling submissions, it chastised the lower court’s issuance of interim orders 2 and 3 only, indicating that it was not, in the least, averse to the grant of orders 1, 4, 5, 6 and 7 supplicated in the selfsame ex parte application.
Above all, the respondents, in their brief of argument, argued these points as preliminary considerations. Curiously, the appellant, in its reply brief of argument, never reacted to those arguments in the preliminary considerations.
It is settled law that where a party fails to respond to a point or an issue, either in the brief of argument or oral presentation, the opposing party is deemed to have admitted all that his adversary has stated. This cardinal principle of law has received the imprimatur of the Supreme Court in the cases of Okongwu v. NNPC (1989) 4 NWLR (Pt.115) 296;; Nwankwo v. Yar’Adua (supra). In due obeisance to that time - honoured rule of law, I take it that the appellant conceded, in toto, to all the points canvassed by the respondents in their preliminary considerations.
At any rate, a court of law is not a santa claus that makes ex-gratia awards. In civil claims, the jurisdiction of a court is circumscribed to rendering unto a party according to his proven claim, see Agbi v. Ogbe (2006) 11 NWLR (Pt.990) 65. Herein, the appellant established an unlawfulness in the grant of interim orders 2 and 3 and it is entitled to their expunction only. In consequence of these, I hold that the appellant’s grievance was not against the whole decision, but part of it, precisely interim orders 2 and 3 made pursuant to the ex-parte application, so that orders 1, 4, 5, 6 and 7 remain unharmed.
On the whole, going by the reasons advanced herein, with the necessary aid of the law, the appellant’s orders 2 and 3, made by the lower court on 19/04/2012, are set aside for want of legal justification. For the avoidance of doubt, the other orders 1, 4, 5, 6 and 7, issued by the lower court on the same 19/04/2012, remain extant, valid and subsisting. The parties shall bear their respective costs of prosecuting and defending the partially-successful appeal.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Ogbuiya J.C.A. and agree with the reasoning contained therein and the conclusion arrived thereat.
The application ex-parte which was brought at the lower Court after forty-seven (47) days of the knowledge of the cause of action, was in my view wrongly granted, as there was sufficient time within the forty-seven (47) days for the other side to be put on notice. The interim orders 2 and 3 made by the lower court on 19/04/2012 are invalid and they are hereby set aside. The remaining orders remain valid and subsisting.
My Learned brother has meticulously treated all the issues raised in the appeal creditably and I have nothing much to add. Appeal is therefore allowed in part by me. I make no order as to cost.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing the lead judgment just rendered by my Learned Brother Obande Ogbuinya, J.C.A. I am in total agreement with the reasoning therein and the conclusion that the appeal is partly meritorious. The interim orders 2 and 3 made by the court below on 19th April, 2012 pursuant to the surreptitious ex parte application cannot stand.
The law is well settled that an ex parte interim order is only granted to forestall an irreparable loss or damage that may otherwise be suffered by an applicant if he were to follow the bureaucratic process of a motion on notice. In the instant case the interim orders 2 and 3 granted in a situation where no urgency existed must be set aside. I similarly so order.
I subscribe to other consequential orders made in the judgement.