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Global Soap & Detergent Industries Ltd v. National Agency for Food and Drug Administration and Control (NAFDAC)

Court of Appeal

Judgement delivered on Wednesday, April 13, 2011
Citation: 54 NIPJD [CA. 2011] 13/2007
Suit No. CA/IL/13/2007      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

TIJJANI ABDULLAHI, J.C.A
SOTONYE DENTON-WEST, J.C.A. (Delivering the Lead Judgement)
IGNATUS IGWE AGUBE, J.C.A.

Passing-off, Cause of Action, Abuse of Court Process –Whether the trial court was right in holding that the suit constituted an abuse of court process in view of the fact that a consent judgment between the parties had been entered into in suit No. FHC/IL/CS/24/2002 on the same subject matter before the same court; and whether the trial court was right in resolving that the Appellant’s case discloses no reasonable cause of action considering the fact that the Appellant’s claim to the brand name “ARIEL” in the suit was the subject matter of the pending suit No. FHC/L/CS/777/98 before the Federal High Court in Lagos.

I. FACTS

This is an appeal against the ruling of Chukwurah Nnamani J. of blessed memory of the Ilorin Federal High Court delivered on Tuesday the 7th day of March, 2006 in which the trial court upheld the respondent’s preliminary objection and dismissed the appellant’s suit on all grounds of objection.

The Appellant was the Plaintiff in the trial court who approached the Federal High Court Ilorin, via an originating summons, and he sought for the determination of the following questions:

1. Having regards to the functions and powers of the defendant under and by virtue of section 5 of the National Agency for Food and Drug Administration and Control Act CAP N1, LFN, 2004, whether or not the defendant has jurisdiction to enter, adjudicate or pass judgment on the plaintiff in respect of a matter which the defendant has described as that of a “pass off”;

2. Assuming without conceding that the plaintiff’s use of the “packaging material/label” ‘ARIEL” constitute a pass off of ARIEL Label in favour of any company whatsoever and particularly Procter and Gamble Limited, (USA) (which is a foreign company) whether or not it is the duty and prerogative or within the jurisdiction of the defendant to pass and pronounce judgments in respect and Procter and Gamble Limited to personally champion its own cause in line with due process of law;

3. Whether or not it is within the functions and powers of the defendant to determine and pronounce which of or between two supposedly competing registered proprietors of the trade mark ARIEL should use or apply the said trade mark ARIEL as a packaging material, label or for sale, distribution or in relation to its products;

4. Having regards to the subsisting case between Procter and Gamble Limited USA (as plaintiff) and the present plaintiff (as defendant) in suit No. FHC/L/CS/777/98 at the Federal High Court, Lagos in respect of the validity or otherwise of the registration of ARIEL as a trade mark and usage of same by the plaintiff for packaging material/label, whether or not the defendant has the power, jurisdiction, right or duty to make pronouncement or any order against the plaintiff in respect of the same subject during the subsistence of the said case;

5. Having regards to the fact that the defendant had earlier granted permission to the plaintiff to use the name “GLOBAL ARIEL” as packaging material/label for its products via its letter reference No. DRN/C.21/1/ dated 27/07/2004, coupled with the fact that the plaintiff has made a payment of a sum of N750,000 to the defendant for the registration of the said label and which said sum defendant had received, whether or not the defendant is not estopped from denying or preventing the plaintiff from using the said label or adding the said ARIEL to its products or as packaging material or label for all its products. WHEREUPON the plaintiff claims against the defendant as follows:

1. A DECLARATION that the defendant does not have power or jurisdiction to condemn or make any pronouncement whatsoever against the plaintiff in respect of any matter relating to the registration of trade mark and/or pass off, particularly in respect of ARIEL”,

2. A DECLARATTON that the defendant does not have any power, jurisdiction or duty to pass any judgment or make any order against the plaintiff in respect of what it conceives as a “pass off” on the registration of ARIEL in favour of any company whatsoever, particularly Procter and Gamble Limited USA during the subsistence of suit No. FHC/L/CS/777/98 between the said company (as plaintiff) and the plaintiff herein (as defendant) at the Federal High Court, Lagos.

3. A DECLARATION that having collected a sum of N462,750 from the plaintiff for the registration and use of the name “GLOBAL ARIEL, for its detergents and having specifically granted leave to the plaintiff to use the said name “GLOBAL ARIEL” for its detergents via its letter dated 21st July, 2004, the defendant is estopped and precluded from denying, preventing and stopping the plaintiff from using the said name “GLOBAL ARIEL” for its detergents or products,

4. A DECLARATION that the defendant’s letter reference No. DRN/C.211/2 dated 30th September, 2004 wherein defendant condemned the plaintiff of passing off the word “ARIEL” and giving it a moratorium of three (3) months effective from 5th October, 2004 within which to exhaust all its materials bearing the said label is ultra vires, oppressive, unkind, illegal, null and void and of no effect whatsoever.

5. AN ORDER setting aside the defendant’s letter reference No. DRN/C.211/2 dated September, 2004,

6. AN ORDER of perpetual injunction restraining the defendant, either by itself, Director-General, Directors, Officers, Servants, Privies, Agents or through any person or persons howsoever from:

i. Preventing or disturbing the plaintiff in any manner whatsoever from using or applying the word “ARIEL” to its products and/or detergents or from using the said word as a packaging material and or label to any of its products or detergents,

ii. Sealing off, closing or shutting down the plaintiff’s factory situate, lying and being at Asa Dam Road,  Ilorin, Kwara State or preventing harassing or threatening it in any way whatsoever from carrying out its duties as producer of detergent soap, etc, or from using in the process of its production the word “ARIEL” as a packaging material/label.

On 2nd day of March, 2005 the respondent filed a notice of preliminary objection challenging the jurisdiction of the lower court to hear and determine the suit as constituted on the following grounds:

(1) That the institution of this suit by way of an originating summons is defective as the facts of this case are highly adversarial and controversial as clearly shown on the face of the affidavit in support of the originating summons and the counter affidavit of the defendant (applicant and therefore robs the court of the much needed jurisdiction to entertain this suit.

(2) That the suit is an abuse of process of this honourable court when considered against the pendency of suit No. FHC/L/CS/777/98 at the Federal High Court, Lagos wherein the plaintiff herein is defendant

(3) The suit is vexatious, malicious, discloses no reasonable Cause of action and constitutes an attempt by the plaintiff to steal a match.

The lower court heard the argument on the originating summon and the preliminary objection together, and in the ruling dated 7th March, 2006, the court upheld the preliminary objection and struck out the action.

Appellant was dissatisfied with the ruling and appealed to this court, wherein he filed a notice of appeal comprising nine grounds of appeal. On the 19th day of January, 2011, when the appeal came up for hearing, the Appellant and Respondent counsel were absent, after they were duly served with the hearing notice. Since briefs have been exchanged, this court vide Order 17 Rule 9(4) of the Court of Appeal Rules adopted the briefs of argument and deemed same as properly adopted by counsel.

The Appellant filed an Appellant’s brief of Argument dated 22nd day of January, 2007, and filed on the 1st day of March, 2007. The respondent on his own filed the Respondent’s brief of argument dated 21st day of May, 2007, and filed on the 19th day of June, 2007.
The Appellant filed a reply brief of argument dated 30th day of January, 2008 and filed on the 4th day of February, 2008. The Appellant filed another amended Appellant’s brief of argument dated 11th day of January, 2010 and filed same date, and this court did not deem it as properly being filed and served, as same was not granted.

The Appellant formulated five issues for determination thus:

1. Considering the fact that all the Exhibits attached to the Respondent’s notice of preliminary objection are uncertified Public documents, and the fact that most of them are either unsigned or undated whether the lower court was not wrong in countenancing with them to hold that Appellant’s case constitutes an abuse of court Process- Grounds 4, 6 and 7; AND/OR

2. Was the lower court right in holding that this suit constitutes an abuse of court Process- Grounds 2, 3 and 5;

3. In view of the settled position of Law as enunciated in decisions of this court and the apex court, whether the lower court was not in error to have struck out respondent’s originating summons on Ground of disputed Facts- Grounds 1;

4. Having regard to the nature of paragraphs 5(d), 10, 11, 12, 17, 18 and 19 of the Affidavit in support of Respondent’s Notice of Preliminary objection juxtaposed with the clear and unambiguous provisions of Sections 86, 87, 88 and 89 of the Evidence Act, whether or not defective and therefore, liable to be struck out- Grounds 8;

5. Does Appellant’s case disclose a reliable cause of action- Grounds 9 (sic).

In the opinion of the respondent counsel, Stephen Ozekhome Esq., the following are the issues that call for determination:

1.  Whether the learned judge was right in holding that this suit as constituted is an abuse of court process having regard to the totality of affidavit evidence before him, in view of the fact that consent judgment via report of settlement between the parties herein had been entered in suit No. FHC/IL/CS/24/2002 on the same subject matter before the same court; and the pendency of suit No. FHC/L/CS/777/98 instituted by Procter and Gamble Company and the Appellant on passing off of the brand name Ariel which is the subject matter in issue,

2. Whether the learned judge was right in resolving in favour of the respondent that the appellant’s case discloses no reasonable cause of action considering the fact that the appellant’s claim to the brand name “ARIEL” in the suit is the subject matter of the pending suit No. FHC/L/CS/777/98 before the Federal High Court Lagos,

3. Whether the learned trial judge was right to have struck out the Appellant’s originating summons as the issues before it were contentious in nature.

This Appeal will be determined vide the Appellant’s five (5) issues which will be tacitly married with Respondent’s three (3) issues adequately. Appellant’s issues one and two will be argued and resolved together, because the Appellant said they both overlap.

APPELLANT’S ISSUE ONE
Considering the fact that all the Exhibits attached to the Respondent’s notice of preliminary objection are uncertified Public documents, and the fact that most of them are either unsigned or undated, whether the lower court was not wrong in countenancing with them to hold that Appellant’s case constitutes an abuse of court process- Grounds 4, 6 and 7.

The learned appellant’s counsel submitted that Exhibits NDC-1 to NDC-4 appearing on pages 79 – 85 of the record are certificates of registration of various or sundry products purportedly issued by the respondent to Procter and Gamble (Nig) Ltd, while Exhibits NDC-5 and NDC-6 appearing on pages 86-92 are processes purportedly filed in courts of law.

He argued further, that these documents are public documents within the meaning, intent, tenor and spirit of sections 97, 109, 111 and 112 of the Evidence Act. That, interestingly, however, none of the said documents or exhibits was certified as statutorily required by section 111 of the Evidence Act.

He also submitted that Exhibits -1 to 3 had expired on 7/03/03, 11/08/04 and 3/04/06 respectively as contained on the faces of those exhibits and they therefore had no force.

According to him, Exhibit NDC-5 on page 86 of the record which is alleged to be the statement of claim filed in suit No. FHC/L/CS777/98 at the Federal High Court, Lagos is neither signed, dated, nor filed at all in any court. These defects, he submitted make the said documents worthless and of no evidential value in law. He relied on the cases of AMAIZU VS. NZERIBE (1989) 4 NWLR (PT. 118) 755 AT 770, HAMEED OJO VS. PRIMATE E.O. ADEJOBI (1978) 3 S.C. 65 AT 72-75; JULES VS. AJANI (1980) 5 – 7 SC 96 AT 107, AUMAN (NIG) LTD. VS. LEVENTIS MOTORS (NIG) LTD (1990) 5 NWLR (PT, 151) 458 AT 658.

The learned appellant’s counsel submitted that, similarly Exhibit NDC-6 at pages 91 – 92 of the record which is the terms of settlement in FHC/IL/CS/2002 was not also certified according to law, and it was dated 28/10/02. That Exhibit NDC-6 is conditional on the judgment in suit No: FHC/L/CS/777/98 between the Procter and Gamble Company vs. Global Soap & Detergent Industrial Ltd., and the Registrar of Trade Marks.

He finally urged the court to resolve issue one in favour of the appellant.

The Respondent’s counsel on his own part in his brief of argument submitted that Sections 73 and 74 (1) (M) of the Evidence Act, 2004 empowers the court to take judicial notice of the proceedings in courts and judgments delivered thereof.

He further submitted that section 73 provides thus:
“No fact of which the court must take judicial notice need to be proved,”

While section 74(1) (m) of the Act provides that:

“The court shall take judicial notice of the course of proceedings and all Rules of practice in force in the High Court of Justice in England and in High Court of a state and of the Federal Capital Territory, Abuja and in the Federal High Court”.

He therefore submitted that, by reason of these aforementioned provisions, the respondent is not duty bound to certify the report of settlement duly signed by the parties and their counsel, wherein a consent judgment had been entered. That it is a document and judgment that were already before the court and over which court must take judicial notice.

He also submitted that, in the case of SPDC (Nig) plc vs. Dino (2007) 2 NWLR (Pt. 1019) 438 at 461, paras. F – H, the court defined judicial notice as follows:

Judicial notice refers to facts which a judge can be called upon to receive and to act upon either from his general knowledge of them or from inquiries to be made by him for his own information from source to which it is proper for him to refer. It also refers to such facts which a court mandatorily takes as proved by the operation of law notwithstanding by which vehicle. Once judicial notice of a fact has been taken by the court that fact is taken as proved thereby dispensing with further proof of the very fact”

He finally referred the court to the case of UBN Plc vs. EDAMKUE (2005) 7 NWLR (925) 520 at para. H

The Appellant’s counsel on the other hand, submitted in his reply brief that sections 73 and 74(1) (m) of the Evidence Act , 2004, which the trial judge claimed empowered him to take judicial notice of proceedings in court, at page 183, line 8 of the record, does not preclude a public document tendered before the court from being certified according to law. That a court is expected in all proceedings before it to admit and act only on the evidence which is admissible. He relied on the cases of UKANE VS. COP (1995) 8 NWLR (PT.416) 705 AT 718; FAWEHINMI VS. I.G.P (2000) 7 NWLR (Pt.665) 491 AT 525.

On appellant’s issue two which was, was the lower court right in holding that this suit constitutes an abuse of court process.

The appellant counsel submitted that, from a careful perusal of the respondent’s notice of preliminary objection vis-a-vis the ruling of the lower court, it is manifest that the learned trial judge completely muddled up the complaint of the respondent on abuse of court process as well as the arguments canvassed by parties thereon, and that the unavoidable result of such confusion being that he misconstrued the whole import of the respondent’s application and consequently reached a perverse decision.

He further drew the court’s attention to ground 3 of the grounds upon which respondent’s application was based, at page 69 of the record, that the said ground states unequivocally that:

“This suit is an abuse of the process of this honourable court when considered against the pendency of suit No. FHC/L/CS/777/98 at the Federal High Court, Lagos, wherein the plaintiff herein is a defendant.”

He submitted further that the learned trial judge completely jettisoned or abandoned the respondent’s complaint as clearly made out in the notice of preliminary objection embarked on an exercise which amounts to making out a new case for the respondent. That in other words, his lordship suo motu recast or rephrased ground 3 of the notice of preliminary objection and resolved the issue of abuse on the recast ground without giving an opportunity to the parties to address him accordingly, contrary to the admonition of the courts in JATAU VS. EKPECHI (2000) 17 NWLR (PT. 849) 326 AND JIWUL V. DIMLONG (2003) 9 NWLR (PT. 824) 154.

He further contended that in the case of OCHOMA VS. UNOSI (1968) NWLR -321, the court held that any decision based on issues which are not raised by parties is a nullity. The learned appellant’s counsel buttressed his point by referring to page 193, line 3 of the record, where the learned trial judge started a consideration on the issue of abuse of court process, and stated thus:

“I will like to start my finding with the issue of abuse of process particularly as it concerns Exhibit NDC-6 which is about the terms of settlement entered into by the parties in suit No: FHC/IL/CS/24/2002 which are also the same parties consideration.” He further submitted that there is no correlation between what the trial judge said above and ground 3 of the respondent’s notice of preliminary objection, just as parties and/or their counsel never addressed him on suit No: FHC/IL/CS/24/2002. That the addresses of counsel centered on or revolved around the present suit No: EHC/IL/CS/27/2004 and FHC/L/CS/777/98 allegedly pending in Lagos, according to the respondent. That if anything, what the trial judge did in the afore-quoted passage undoubtedly betrays his misapprehension of the issue placed before him.

He also submitted that the learned trial judge canvassed and argued the case of the respondent. That at pages 193-200 of the record, the lower court quoted in extensor affidavits filed in suit: FHC/IL/24/2002 which were never annexed or drawn to the attention of the appellant, and made use of same in his judgment, while the appellant had no opportunity at all of responding to the processes or reacting to same, thereby making the judgment to be perverse in the extreme. He referred to pages 68 – 92 of the record.

In the same vein, the learned counsel submitted that the respondent did not seek for the striking out of the appellant’s suit on the ground that same constitutes an abuse of court process against suit FHC/IL/CS/24/2002 but against FHC/L/CS/777/98. That a court is bound by the relief claimed and it cannot grant more or differently from that claimed. He relied on the case of OLATUNJI VS. OWENA BANK OF NIG. PLC. (2002) 15 NWLR (PT.790) PAGE 272 AT 286 – 287, PARAS B – C.

He noted that a court is not a father-Christmas to grant to a party a relief not specifically prayed for. He referred to the case of UNION BANK LTD. VS. OWOLANI (1988) 1 NWLR (PT.68) PAGE 125 AT 135 AND KALIO VS. KALIO (1975) 9 NSCC PAGE 16. The learned counsel also referred to page 193, line 9 of the record, where the trial judge posited thus:

“Exploiting sections 73 and 74 particularly section 74(i) (m) of the Evidence Act which empowers me to take judicial notice of proceedings in court, I again took a critical look at suit No: FHC/IL/CS/27/2004.”

Taking into consideration, the above quotation, the learned appellant counsel submitted with respect that the lower court’s finding on this issue is wholly and entirely unsupportable in fact and in law, and therefore, perverse in the extreme, That what the learned trial judge did in this case amounts to fishing for unsolicited evidence on behalf of a party in the proceedings with a view to giving him judgment. That, by going into the store or warehouse of the Federal High Court, Ilorin Division to look at the originating processes in suit No: FHC/IL/CS/25/2002 to determine whether the parties in that suit and the present one are the same (in contradistinction to the complain made out in ground 3 of the respondent’s application) his lordship has certainly descended in the arena of conflict, thereby occasioning a miscarriage of justice.

He relied on the Supreme Court decision in S.A.I OSSAI VS. ISAAC F. WAKWAH (2006) 4 NWLR (PT. 969) 208 AT 230, where Mohammed JSC who read the leading judgment pontificated thus:

“By personally taking steps in the absence of the parties in fishing out exhibit “A” to rely upon in his judgment, the learned trial judge clearly descended into the arena of the fight between the parties to take side with the appellant. The wrongful admission of exhibit “A” by the trial court no doubt occasioned a miscarriage of justice justifying the setting aside of that judgment by the court below.”

He also relied on EBOH VS. AKPOTU (1968) 1 ALL NLR 220 AT 222 AND TIMITIMI VS. AMABEBE (1953) 14 WACA 374.

He also cited the case of OKODUWA VS. THE STATE (1988) 2 NWLR (PT.76) 333 AT 354, where the Supreme Court, per Nnaemeka-Agu, JSC strongly condemned a similar practice of fishing for evidence and relying on same in the eventual judgment as follows:-

“There are certain fundamental norms in the system of administration of justice we operate. The system is the adversary system, in contradistinction to the inquisitional system. In that adversary system, parties with their counsel and the judge have their respective roles to play. Basically, it is the role of the judge to hold the balance between the contending parties and to decide the case on the evidence brought by both parties and in accordance with those rules of the particular court and the procedure and practice chosen by the parties in accordance with those rules, tender no circumstance must a judge under the system do anything which can give the impression that he has descended into the arena, as obviously his sense of justice will be obscured.”

The learned appellant counsel further submitted that there is nothing in Exhibit NDC-5, the statement of claim purportedly filed in suit No: FHC/L/CS/777/98 at the Federal High Court, Lagos to support his Lordship’s finding. That a cursory look at the document would show that the plaintiff thereat is “THE PROCTER AND GAMBLE COMPANY” whereas the plaintiff is the “GLOBAL SOAP AND DETERGENT INDUSTRIES LTD.” and furthermore, in the said document, “GLOBAL SOAP AND DETERGENT INDUSTIRES LIMITED” and “THE REGISTRAR OF TRADE MARKS” are listed as defendants, whereas in the present suit, “National Agency for Food and Drug Administration and Control (NAFDAC) is the sole defendant, hence the parties in the two suits are different.

In the same vein, the learned counsel argued that the issues in Exhibit NDC-5 relate to or concern “ownership of trademark” whereas in the present suit, all the appellant wants the lower court to do is interpret the relevant sections of the laws establishing the respondent and decide whether or not it has the power to regulate trademarks, patents, e.t.c.

He humbly submitted that the law is that where parties and reliefs in two comparative suits are different, the issue of abuse of court process will not arise. He referred this court to the cases of AMOBI VS. NZEGWU (2005) 176 NWLR (PT.938) 120 AT 143, OWONIKOKO VS. AROWO SAIYE (1997) 10 NWLR (PT.523) 63, OKAFOR VS. A.G. ANAMBRA STATE (1991) 6 NWLR (PT. 200) 666 AND PLATEAU STATE VS. A.G. FEDERATTON (2006) 3 NWLR (PT. 697) 346 SC.

He further argued that, by section 5 of National Agency for Food and Drug Administration and Control Act Cap N1, LFN, 2004 the respondent does not have power over the issue of trade mark and pass-off and that explains why the respondent was not made a party to suit No: FHC/L/CS/777/98. That assuming, but not conceding that the respondent has power over the issue of trade mark and pass-off, Exhibit NDC-6 if a conditional judgment premised on the outcome of suit No FHC/L/CS/777/98, the respondent ought to wait for the outcome of the said suit before it could embark on a reasonable cause of action.

He finally urged this court to resolve this issue in favour of the appellant.

The learned respondent counsel on his part, treated this issue as issue one and submitted that the learned trial judge took a very critical look at the totality of the exhibits attached to the affidavit in support of the notice of preliminary objection as well as the argument of both parties and gave detailed case of the appellant as amounting to abuse of the process of the court.

He also submitted that having regard to the consent judgment entered by the lower court in suit No: FHC/IL/CS/24/2002 on the same subject matter by the same parties, it amounted to an abuse of court process and tantamount to the appellant re-litigating a matter that judgment had been delivered upon. That this is especially so as the earlier consent judgment was a valid one, free and voluntarily made by parties and witnessed by their counsels.

He relied on the Supreme Court’s decision in AGWAISM VS. OJICHIE (2004) 10 NWLR (PT.882) PG 613, particularly pp 622 – 623 paras E – B 624 – 625 paras E – B as follows:

“The abuse of judicial process is (sic) improper use of the judicial process by a party in litigation, it may occur in various ways such as:

a. instituting a (sic) multiplicity of actions on the same subject matter against the same opponent on the same issue; or
b. Instituting a (sic) multiplicity of actions on the same matter between the same parties;
c. Instituting different actions between the same parties simultaneously in different courts even though on different grounds; or d. where two similar processes are used in respect of the exercise of the same right such as cross appeal and a respondent’s notice.”
He also relied on NYAH VS. NOAH (2007) 4 NWLR (PT. 1024) 320 AT 337. PARAS E – F, 338, PARAS E – F.

The learned respondent counsel submitted that in suit No: FHC/IL/CS/24/2002, the plaintiff and the defendant are the same parties in the suit before the lower court and over which the appellant is appealing against the decision, and it also bothers on the same subject matter as it concerns the usage of the brand name “Ariel Blue Detergent,” before the same court as the lower court. He also submitted that, it has been stated that the determination of whether an abuse of court process has occurred in the instant case or the first suit involves a consideration vis-a-vis the second one to see whether they are aimed at achieving the same purposes. That the lower court was right in holding that suit No FHC/IL/CS/24/2002 and FHC/IL/CS/27/04 which appeal is now before the court were aimed at achieving the same purpose and it therefore amounts to the appellant re-litigating the same issue before the same court. He referred to pages 203 – 209 of the records of appeal lines 11 – 21 and 1 – 2 respectively; and the cases of ANSA VS. CROSS LINES LTD. (2005) 14 NWLR (PT. 966) AT 666 PARA C – D; UNIFAM IND. LTD. VS. OCEANIC BANK INT’L (NIG.) LTD. (2005) 3 NWLR (PT.911) 83 and particularly pages 102, paras A – B, 103, paras F – G.

He finally submitted that the judge of the lower court was right in holding that the essence of the suit now being appealed against was to overreach, sabotage and/or prejudice the consent judgment earlier entered into in suit No FHC/IL/CS/24/2005. That the effect of the suit at the lower court was to effectively render the consent judgment redundant, ineffective and to bring the court into ridicule and disrepute.

The learned appellant counsel, in his reply brief however, submitted that, by paragraphs 1 of Exhibit NDC 6, appearing on pages 138 and 139 of the record, the terms of settlement in suit No. FHC/IL/CS/24/2002 is conditional and subject to the determination of suit No. FHC/L/777/98 between PROCTER AND GAMBLE COMPANY VS. GLOBAL SOAP DETERGENT INDUSTRIES LIMITED pending at the Federal High Court, Lagos.

He submitted further that, subsequent to the making of Exhibit NDC 6, the respondent wrote Exhibit 6 appearing at page 54 of the record dated 21st July, 2004 titled: “Re-Registration of our Global Soap and Detergent Industries Ltd “Ariel Brand Soap”, whereby it expressly granted the appellant permission to use the name “Global Ariel” for its detergent.

The learned appellant counsel, also referred to Exhibit 7 appearing on page 55 of the record, that in this exhibit, the respondent did not deny that they expressly permitted the appellant to produce Global Ariel, but they backed down on the ground that they had just received an appeal from Procter and Gamble for a grace of 18 months to import Ariel Detergent.

Based on the foregoing, he argued that the present action is therefore, totally different from suit No. FHC/IL/CS/24/2002 in that the respondent who had expressly permitted the production of Global Ariel now, suddenly changed its mind by accusing the appellant of “pass-off”. That the present action is to determine whether the respondent has any power to deal with issue of “pass off” or if any exists. He also referred to paragraphs 21, 22 and 24 of the affidavit in support of the originating summons to the effect that this new case arose also as a result of threat to shut down the factory of the appellant. That the issue in the present action and suit No: FHC/IL/CS/24/2002 are different, and submitted that where issues are not the same, there can be no abuse of court process. He relied on the cases of OKAFOR VS. A.G. ANAMBRA STATE (1991) 6 NWLR (PT. 200) PG. 659 AT 631; OKORODUDU VS. OKOROMADU (1973) 3 SC 21; AWOFESO VS. OYENUGA (1996) 7 NWLR (PT 460) PAGE 360 AT 367; BENDEL FEEDS AND FLOUR MILLS VS. M.M,B, LTD, (2000) 5 NWLR (PT.655) 29 AT 48.

He finally submitted that all authorities cited by the counsel to the respondent on this issue are either not relevant or distinguished.

RESOLUTION OF APPELLANT’S ISSUE ONE AND TWO
Considering the fact that all the Exhibits attached to the Respondent’s notice of preliminary objection are uncertified public documents, and the fact that most of them are either unsigned or undated, whether the lower court was not wrong in countenancing with them to hold that Appellant’s case constitute an abuse of court process, it is trite that unsigned and undated document is a worthless piece of paper that has no evidential value in law see the cases of AMAIZU V.NZERUBE (1989) 4 NWLR (Pt 118) at page 755 and SALIBAWA V. HABILAT (1991) 7 NWLR (Pt. 174) at page 461.

The poser now is can the court take judicial notice of documents even if they are unsigned?

All courts of law are enjoined by Section 74 of the Evidence Act to take judicial notice of such laws, enactment and subsidiary legislations see the case of NNAEMEKA AGU J.S.C (as he then was) in the case of OSAFILE V. ODI (1990) 2 NWLR (Pt 137) states as follows:

“Our law preserves the distinction between facts of which the court shall take judicial notice, when called upon by a party to do so, because those facts are notorious to, on the one hand and those facts which, in exercise of its power under subsection (3) of Section 73 of the Evidence Act, refuse to do so unless and until such a person produces the necessary material or he has informed himself properly to enable him to do so,”

Judicial notice is defined to refer to facts which a judge is called upon to receive and act upon either from his general knowledge of them or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer, It also refers to such facts which a court mandatorily takes as proved by the operation of law. Notwithstanding, by which vehicle, once judicial notice is taken see the case of AMAECHI V. INEC (2008) 5 NWLR (Pt.1080) 227 at page 364 – 365, paras E also the case of OMIDIORA V. F.C.S.C. (2008) All FWLR (Pt 415) 1807 at 1822, paras F – G and the case of IDRIS V. ANPP (2008) 8 NWLR (Pt.1088) 1 at 155, paras F – H (CA).

Thus, I hold that the lower court can take judicial notice of the proceedings of other courts, in essence the lower court was right to hold that the process exhibited before him is an abuse of court process as it will be wrong for him to preside over a matter that has been decided by another court or still pending before another court.

Abuse of court consists of an improper use of the issue of judicial process or processes already issued to the irritation or annoyance of the opponent. Multiplicity of actions, which involves the same subject matter and parties amounts to abuse of process of court and a court has the duff to stop such abuse. Furthermore, to institute an action during the pendency of another one, claiming the same reliefs amounts to abuse of process of court see the cases of Anah v. Anah (2008) 9 NWLR (Pt.1091) 75 at 83, para, H (CA) and in the case UMEH V. IWU (2008) NWLR (Pt 1089) Onnoghen JSC held thus:

“It is settled law that for there to be an abuse of court process, there must exist a multiplicity of suits between the same parties on the same subject matter and on the same issues which preconditions are mutually inclusive as they are conjunctive, in the case of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 – 189, this court held inter alia that “the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se, The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice.

“Per Onnoghen, JSC, (P. 42 Paras. A – F).
The Supreme Court also held in the case of AGWASIM V. OJICHIE (2004) 10 NWLR (Pt.882) page 613 particularly page 622 – 629 paras E – B, 624 – 625 paras E – B as follows:

“The abuse of judicial process is improper use of the judicial process by a party in litigation. It may occur in various ways such as:
a) Instituting multiplicity of actions on the same subject matter against the same opponent on the same issue; or
b) Instituting multiplicity of actions on the sane matter between the same patties,
c) Instituting different actions between the same parties simultaneously in different courts even though on different grounds or
d) Where two similar processes are used in respect of the exercise of the same right such as cross appeal and a respondent’s notice,
See also the case of NYAH V. NYAH (2007) 4 NWLR (Pt.1024) 320 at 332 paras E – E 338 paras E – F,

In suit No: FHC/IL/CS/24/2002, the plaintiff and the defendant are the same parties in the suit before the lower court and over which the appellant is appealing against the decision, and it also bothers on the same subject matter as it concerns the usage of the brand name “Ariel Blue Detergent” before the same court as the lower court.

It has been stated that the determination of whether an abuse of court process has occurred in the instant case or the first suit involves a consideration vis-a-vis the second one to see whether they are aimed at achieving the same purpose. The lower court was right in holding that suit No FHC/IL/CS/24/2002 and FHC/IL/CS/27/04 which appeal is now before the court were aimed at achieving the same purpose and it therefore amounts to the appellant re-litigating the same issue before the same court.

The lower court was right in holding that the essence of the suit now being appealed against was to overreach, sabotage and/or prejudice the consent judgment earlier entered into in suit No FHC/IL/CS/24/2005. That the effect of this suit was to effectively render the consent judgment redundant, ineffective and to bring the court into ridicule and disrepute.

On a court granting an order that was never solicited for by a litigant before a court, it is trite that a court is not a father Christmas however, a court though not a Father Christmas; has discretion to grant or make orders that will justify the case before it. Gone are the days when judges were zombies. A judge can use his discretion for a good course; the lower court never granted what was not asked for by the parties.

A court of law has the discretion to look at all the documents in its possession to come to a judicious and reasonable conclusion.
In all I resolve issues one and two against the Appellant in favour of the Respondent to the extent that this suit constitute an abuse of court process.

APPELLANT’S ISSUE 3
In view of the settled position of Law as enunciated in decisions of this court and the apex court, whether the lower court was not in error to have struck out respondent’s originating summons on Ground of disputed Facts.

The learned appellant counsel submitted that the appellant commenced this action by filing an originating summons dated 15th of December, 2004 and supported by a twenty-seven (27) paragraph affidavit against which was filed a counter affidavit containing twenty one (21) paragraphs. That both affidavits have attached or annexed to them documents which, to all intents and purposes were meant to explain or accentuate the facts averred or deposed to in the originating summons and the competing affidavits.

He humbly submitted that the procedure adopted by the appellant accords with or finds support in the clear and unambiguous provisions of Order 2 Rule 2(2) (a) of the Federal High Court (Civil Procedure) Rules, 2000 which provides that:

“Proceedings may be begun by originating summons where:-
a. The sole or principal question at issue is, or likely to be one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some other question of law.

He further submitted that, it appears that the lower court haltingly and without any legal prudence struck out the originating summons without in the least taking cognizance of the overwhelming documentary evidence placed before it by the appellant, so as to enable it have resort to them in resolving whatever disputes real or imaginary, that may have arisen . He relied on the cases of LIJADI VS. LIJADU (1991) 1 NWLR (PT.169) 627, KANNO VS. KANNO (1986) 5 NWLR (PT.40) 138, DANA IMPEX LTD. VS. AWUKAM (2006) 3 NWLR (PT.968) 544 AT 562 – 563; EDOSOMWAN VS. EREBOR (2001) 13 NWLR (PT.730) 266 AT 294, AND FALOLA VS. U.B.N. PLC. (2005) ALL FWLR (PT.257) PAGE 1435 AT 1443, PARAS A – B.

He also submitted that it is the case of the plaintiff that vests jurisdiction on a court and not what a defendant may imagine or rake up by way of preliminary objection. He referred to the cases of ADEYEMI VS. OPEYORI (1976) 9 – 10, SC. 31; OKULATE VS. AWOSANYA (2000) 2 NWLR (PT.646) 530 AT 555 – 556 AND INAH VS. UKOI (2002) 9 NWLR (PT.773) 563 AT 582, 586. The learned appellant counsel submitted that assuming without conceding that originating summons procedure was not appropriate or was not suitable in the circumstances of this case, all the lower court is empowered under the law to do was either to convert the affidavit before it to pleadings or order fresh pleadings to be filed by the respective parties, rather than striking out the originating summons in this case. He relied on the cases of EMEZI VS. OSUAGWU (2006) 12 NWLR (PT. 399) 340 AT 367 AND OLAMIDE VS. AJAYI (1997) 8 NWLR (PT 517) AT 443.

He also relied on practice and procedure of the Supreme Court, Court of Appeal and High Courts in Nigeria by Akinola Aguda, 2nd Ed. Page 52.

He also cited Akin’s court forms, 2nd edition, volume 29, 1983, at page 295 paragraph 7.

He further submitted that in EJIIRA VS. IDRIS (2006) ALL FWLR (PT.318) 646 AT 664, the Court of Appeal, Abuja Division was confronted with a similar situation or scenario where there was serious contention as to whether originating summons is ideal to common proceeding, where there is dispute on questions of fact or the likelihood of dispute. That, although the court agreed with the appellant that originating summons was inappropriate for such a proceeding, it nonetheless held that where the court finds an originating summons to be inappropriate, the proper order to make is one ordering the parties to file pleadings and come by way of writ of Summons and not to dismiss or strike out the suit.

That, even if the lower court is right that it is a matter of judicial discretion, it should be exercised judicially and judiciously and in compliance with the rules, reason and logic. He relied on the cases of NTUKIDEM V. OKO (1986) 5 NWLR (PT.45) 909 @ 931 and AINA V PUBLIC TRUSTEES (1970) 1 ALL NLR 287 to the effect that a court has a duty to consider a case on the merit rather than striking it out based on preliminary objection.

He finally urged the Court of Appeal to resolve this issue in favour of the appellant and hold that the path or decision chosen or taken by the lower court in striking out the originating summons on ground of hostile facts does not accord with and has the propensity to disturb settled position of law.

The learned respondent counsel on his part, submitted that the learned trial judge was right to have struck out or dismissed the suit as being contentious or having the likelihood of substantial dispute of facts as contained or stated in the originating summons.
He submitted that in the case of OSSAI VS. WAKWAH (2006) 4 NWLR (PT.969) 208 AT 228, PARAS A – D the Supreme Court held that:

“Originating summons is one of the means of commencing civil proceedings in the High Court, but it is intended for us in limited situations specified in the rules. Principally, it is ideal for use in an action involving the construction and interpretation of a written law or documents in an action where there is no dispute on questions of facts or the likelihood of such dispute. In other words, originating summons is not suitable for commencing hostile proceedings.”

He further argued that the suit instituted by the appellant involves the controversial issue of the use of the brand name “Ariel”. That it also involves a determination as to the true owner, or the first owner of the brand name which therefore becomes a question of fact and not of law.

He relied on the case of AJAGUNLAGBADE II VS. ADEYELU II (2001) 16 NWLR (PT.738) 126 AT 197 PARAS G – H, where Tabai JCA (as he then was) stated as follows:

“Originating summons is simply a mode of procedure to which recourse is made when the circumstances are such that there is no dispute on questions of facts or the likelihood of such dispute where there is a dispute on facts then there can be no recourse to originating summons.”

He also cited the case of AINABEBHOLO VS. E.S.U.W.F.M.P.C. LTD. (2007) 2 NWLR (PT 1017) 93 AT PAGES 48, PARAS F – H, 49′ PARA’ G – H, where the court held that where a party fails to satisfy a condition precedent to the institution of an action, the action instituted by the party is premature and consequently incompetent. It is only logical that the remedy prescribed by law must first be exhausted before recourse to the law court.

In the same vein, the learned respondent counsel also quoted the Supreme Court’s decision in INAKOJU VS. ADELEKE (2007) 4 NWLR (PT.1025) 423, where it was held inter alia that:

“Where facts are in dispute or riotously so, an originating summons procedure will not avail a plaintiff, and he must come by way of writ of summons. In other words, originating summons procedure will not lie in favour of a plaintiff where the proceedings are hostile in the sense of violent dispute,”

He therefore respectfully submitted that the striking out of the appellant’s originating summons by the learned trial judge without acceding to the appellant’s argument that the court should direct filing of pleadings to commence by way of writ of summons was perfectly right under the circumstances.

The learned respondent counsel contended further, that this was the same position taken by the Court of Appeal in the case of AIAGUNLA GBADE III VS. ADEYELU II (SUPRA) where the court further held that the proper order a trial court should make when a suit is not properly commenced is an order striking out the suit on ground of incompetence.

He further submitted that the learned trial judge was right when he held that there was no way the court could decide on the issue of brand name and the involvement of the respondent as the defendant without calling oral evidence for further clarification and elucidation.

Based on the foregoing argument, he humbly urged the court to uphold the decision of the lower court on this issue and discountenance the argument of the appellant.

The learned appellant counsel however did not address this issue in his reply brief.

RESOLUTION OF ISSUE THREE

The Federal High Court Civil Procedure Rules (2000) Order 2 Rule (2)(a) provides thus:
Proceedings may be begun by originating summons where:

a) The sole or principal question at issue is, or likely to be one of the constructions of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some other guest ion of law….”

The lower court held that:
As earlier, even a cursory took at the said paragraphs of Plaintiff/Respondent’s affidavit in support and Defendant/Applicant’s counter affidavit prima facie discloses a substantial dispute.

There is no way this court can decide on this issue of brand name and the involvement of the Defendant without calling oral evidence for further clarification and elucidation,

I agree with the Defendant/Applicant’s counsel that the facts deposed to by the Plaintiff/Respondent in support of his originating summons are indeed contentious or substantial.

Accordingly, it does offend order 2 Rule (2) of the Federal High Court Civil Procedure Rules 2000 which stipulates that actions shall be commenced by originating summons where there is unlikely to be any substantial dispute of fact.

The cases of UNIVERSITY OF LAGOS V. AIGORO (1991) 3 NWLR (Pt 179) 376 at 383 – 384 (wherein NATIONAL BANK OF NIG. & ANOR. V. LADY ALAKIJA & ANOR. (1978) 9 – 10 SC 59 at 71 was referred) and DIRECTOR OF SSS V. AGBAKOBA (1989) 3 NWLR (Pt.595) (1999) SCNJ 1 cited by the Defendant/Applicant’s counsel is apt very in this regard.” The above holding is clear to the extent that, there are facts that are in dispute and it will be improper to commence such actions by originating summons see I.G.N. V. ZEBRA LTD (2002) 18 NWLR Pt 789, OSAI V. WAKWA (2006) 4 NWLR (969), and EZE IGWE V. NWALULU.

Where it is settled law that originating summons procedure is adopted where the sole or principal question at issue is, or is likely to be that of the construction of a written law or any instrument made under any written law or any deed, will, contract or other document or any substantial dispute of fact relevant to the determination of the issue in controversy, however, see NATIONAL BANK OF NIG. & ANOR V. LADY ALAKIJA & ANOR (1979) 9 – 10 SC 59 (1978) 9 – 10 SC (Reprint) 42″ The learned trial judge was right when he held that there was no way the court could decide on the issue of brand name and the involvement of the respondent as the defendant without calling oral evidence for further clarification and elucidation.

Thus, originating summons cannot be used for contentious issues as in this case see FEDERAL GOVERNMENT OF NIGERIA & ORS ZEBRA ENERGY LTD (2002) 18 NWLR (Pt 798), PAM V. MOHAMMED (2008) 16 NWLR (PT.1112) and ADEYELE II & OR V, OYEWUNMI & ORS (2007) NWLR (Pt 1053).

An action that is commenced vide a wrong process is within the discretion of the trial court to either strike out the process or ask the party to file another process as provided for by the rules of the court. Discretionary power of the lower will not be disturb as it does not cause the appellant unnecessary injustice.

In the light of the above, issue 3 is resolved against the Appellant in favour of the Respondent to the extent that the lower court was right to have struck out the originating summons.

APPELLANT’S ISSUE 4
Having regard to the nature of PARAGRAPHS 5 (D) 10, 11, 12, 19, 18 AND 79 of the affidavit in support of respondent’s notice of preliminary (sic) juxtaposed with the clear and unambiguous provisions of sections 86, 87, 88 and 89 of the Evidence Act, whether or not the said paragraphs are not defective and therefore, liable to be struck out.

The learned appellant counsel submitted that sections 80 – 87 of the Evidence Act stipulate or prescribe what an affidavit should contain, and according to the sections, an affidavit shall contain only the information which are within the personal knowledge of the deponent, devoid of any prayer, legal interpreting these sections (sic), the courts have held consistently that any affidavit which violates the clear and unambiguous provisions of the Evidence Act shall be struck out for being incompetent. He relied on the cases of NIGERIA LNG, LTD. VS. A.D.I.C. LTD. (1995) 8 NWLR (PT. 416) 477 DANA IMPEX LTD. VS. AWUKAM (2006) 3 NWLR (PT. 968) 544 AT 561 – 562 AND BANK DELAFRIQUE OCCIDENTAL VS. ALHAJI BAAB SHAFADT.

He further submitted, that a cursory perusal and scrutiny of paragraphs 5(d), (10), (11), (12), (17), (18) and (19) of the rather long and amorphous affidavit in support of the notice of preliminary objection filed by or on behalf of the respondent, would show that what A.S. Afolabi, the deponent has done, is either to load the affidavit with conclusions of law, argument and or other anathema which have no place in an affidavit by virtue of the Evidence Act.

He relied on the Court of Appeal’s decision in N.P.A.S.F. VS. FASEL SERVICES LTD. (2001) 17 NWLR (PT. 742) 261 AT 291, that any paragraph of an affidavit which offends the provisions of the Evidence Act ought to be expunged. He also referred to the following cases, NIGERIA L.N.G. (NIG) LTD. VS. A.D.I.C. (1995) 8 NWLR (PT. 416) 677 AT 679 – 698 AND N.I.D.B.  VS. FEMBOL (NIG) LTD. (1997) 2 NWLR (PT. 489) 543 AT 560.

The learned appellant counsel argued that rather than have a dispassionate look at these defective paragraphs vis-a-vis the authorities on the issue and in particular those he cited to the court, the trial judge in a most unfashionable and unfathomable manner held that:

“I do not find Defendant/Applicant’s affidavit particularly paragraphs 5(d) 10, 11, 12, 17, 18 and 19 in support of his preliminary objection offensive to sections 86-89 of the Evidence Act as submitted by plaintiff/respondent’s counsel, as the said paragraphs are not conclusions and moreover there is no law making it mandatory that preliminary objections must be accompanied by an affidavit. The striking out of the purported offending paragraphs or even the entire affidavit does not defeat the preliminary objections,”

He argued further that the lower court ought to have struck out paragraphs 5 (d), 10, 11, 12, 17, 18 and 19 of the affidavit of A.S. Afolabi deposed to on 2nd March, 2005 and appearing at pages 72-77 of the record for infraction or impugning on the provisions of sections 86, 87, 88 and or 89 of the Evidence Act. That if this is done, then it would be crystal clear that there is virtually nothing left in the entire affidavit to support the relief(s) sought in the application upon which the ruling of the lower court can be sustained.

He therefore urged the Court of Appeal to invoke and exercise its powers under and by virtue of section 15 of the Court of Appeal Act and strike out the offending paragraphs of the affidavit in support of the Notice of Preliminary Objection. He referred to the cases of TOWOENI VS. TOWOENI (2001) 72 NWLR (PT. 727) 445 AT 461, EJOWHOMU VS. EDOKETER LTD. (NIG) LTD. UNIT (2000) 6 NWLR (PT.710) 730 AT 737 – 738.

He finally urged the court to resolve this issue in favour of the appellant.

The learned respondent counsel on his part did not address this issue in his brief of argument; hence the learned appellant counsel filed no reply on this issue.

RESOLUTION OF ISSUE FOUR
Appellant’s issue 4 deals with section 80 – 87 of the Evidence Act which stipulates what an affidavit should contain.
Section 86 provides thus

Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true,”

Section 87 states thus:
An affidavit shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion.”

See also NIGERIAN LNG. LTD. V. APIC LTD. (1995) 8 NWLR (Pt.968) 544 at 561 – 562 and BANK DELAFRIQUE OCCIDENTAL V. ALHAJI BAIB SHAFADI.

An affidavit that offend the provisions of the Evidence will be struck out without more see NPASF v. FASTL SERVICES LTD (2001) 16 NWLR (PT.742) 261 – 291 and NIDB V. FEMOL (1997) 2 NWLR (Pt.489) 543 at 560.

I think the legal position is clear, that in any affidavit used in the court, the law requires, as provided in sections 86 and 87 of the evidence act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the court to reach.

The Respondent did not respond to the issue and without prejudice, the paragraphs (5(d), 10, 11, 12, 17, 18 and 19) are conclusion of law and argument which is against the tenet of an affidavit and it is hereby expunged and same is struck out. The poser at this stage is will it affect the preliminary objection, the answer is that the preliminary objection on its own can sustain the objection raised.
Issue four is resolved against the appellant in favour of the respondent.

APPELLANT’S ISSUE 5
DOES APPELLANT’S CASE DISCLOSE A REASONABLE CA– USE OF ACTION?
The learned appellant counsel submitted that a careful perusal and consideration of the case of the appellant discloses a reasonable cause of action. He referred to paragraph 26 of the affidavit in support; Exhibits 6, 7 and 8 annexed thereto appearing on page 8 of the record, as well as paragraphs iv, vii, ix of the counter affidavit to the preliminary objection, all to the effect that the respondent expressly permitted the appellant vide its letter 21/7/2004 to use the name Global Ariel.

He further submitted that the said letter is attached as Exhibit 6 in the affidavit in support of the originating summons. That based on Exhibit 6, the appellant fulfilled all the conditions stipulated by the respondent, but suddenly and without any justification, factual or legal, the respondent wrote another letter dated 26/8/04 attached as Exhibit 7 to the affidavit in support of the originating summons to the effect that it has received a presidential waiver in favour of a foreign Firm/Procter and Gamble and also a petition from the same company against the permission granted to the appellant to produce Global Ariel.

He also submitted that in aggravation of the insensitiveness of the respondent, she wrote another letter to the appellant dated 30/9/04 directing the appellant to exhaust all its materials bearing Global Ariel before 5/10/04, which is Exhibit 8 attached to the affidavit in support of the originating summons That it was in realization of the impossibility of carrying out the said directive to the appellant to exhaust her raw materials and real threat of locking up her factory that made the appellant to approach the lower court.

He argued that a new vista of cause of action arose in year 2004 based on new set of facts and circumstances and the appellant is entitled to the court’s protection in view of the illegal and unconstitutional steps taken against her by the respondent who is openly canvassing and crusading the interest of a foreign firm against the interest of a local industry which it ought to protect. That is the respondent had permitted the appellant to produce Global Ariel, she should be estopped from taking a contrary step, the appellant having taken steps in that direction to her disadvantage and detriment should be protected by the lower court.

The learned appellant counsel argued that these facts show in no uncertain terms the wrongful acts of the respondents against the appellant which, aggregated in or gave rise to a right to sue. That it was therefore, a thing of surprise that trial judge would hold that, the case of the appellant falls into unreasonable cause of action.

The learned appellant counsel submitted that the concept or phrase “reasonable cause of action” was defined in the case of SODIPO VS. LEMMINIKAINEMOY (1992) 8 NWLR (PT.258) 229 AT 242, to mean:

“a cause of action with some chance of , success, A reasonable cause of action is a good cause of action, a cause of action which is valid and sustainable in law, the word “reasonable” ordinarily means fairy proper, just, moderate and suitable under the circumstances,”

He referred also to the cases of BOLAJI VS. BAMGBOSE (1986) 4 NWLR (PT.37) 632 AND AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR (PT. 127) 369.

He further submitted, that from a cursory perusal of the contents of the appellant’s originating summons, particularly the questions for determination, the reliefs sought there under and the unmistakable facts in supporting the affidavit, can it be said that appellant’s case discloses no reasonable cause of action? And he answered that the answer will definitely be in the negative.

Based on the foregoing, he humbly submitted that, it is beyond any peradventure that the appellant’s case discloses a reasonable cause of action. That there can therefore be no justification in the reasoning and conclusion reached by the trial judge that:

“In brief, the plaintiff/respondent’s statement of claim discloses that the claim for the brand name “ARIEL” is the subject matter of the suit, The statement of claim in another, particularly paragraphs 1 and 77 discloses that this main claim of the brand name “ARIEL” is the subject matter in another suit at Federal High Court Lagos in suit No. FHC/IL/CS/77/98 which is still pending. What then is the essence of this suit when by plaintiff/respondent’s admission there is a pending suit of the same subject matter in Lagos, i am afraid at this point this present suit falls into unreasonable cause of action.”

He therefore submitted with respect to the learned trial judge, that the afore quoted is perverse and cannot by any stretch of imagination stand the test of time. That it is a well settled principle of our adjectival law that in determining whether there exists a reasonable cause of action, the court’s search for such cause of action is restricted to the writ of summons and the statement of claim or originating summons (as in the instant case). He referred to the cases of KUSADA VS. S.N.A (1968) 1 ALL NLR 377 BOLAJI VS. REV. BAMGBOSE (1986) 4 NWLR (PT. 37) 632, AND ADESOKAN VS. ADEGBOROLU (1991) 3 NWLR (PT. 179) 293.

He also submitted that when a defendant urges a court to dismiss an action on the ground that it discloses no reasonable cause of action, he must confine himself only to the case of the plaintiff. That the law does not allow him to rely on his defence at this stage. He relied on SODIPO VS. LEMMINKAINEM OY (SUPRA) at 243. That it is in this regard that he has difficulty or dilemma appreciating the decision by the learned trial judge in resorting to certain paragraphs of the counter-affidavit filed by the respondent against the originating summons in dismissing or striking out the summons.

He finally, urged the Court of Appeal to hold that appellant’s case disclose a reasonable and cognizable cause of action and resolve this issue in its favour.

In the respondent’s brief of argument, he considered this issue as issue number two, and submitted that the learned trial judge was right to have held that the appellant’s suit at the lower court is embarrassing, scandalous, and vexatious and disclosed no reasonable cause of action against the respondent.

He further submitted that, it has been stated in a plethora of cases that a reasonable cause of action is a cause of action which when only the allegations in the statement of claim are considered, has some chances of success. He relied on the Apex Court’s decision in the case of RINCO CONST. CO. LTD. (2005) 9 NWLR (PT.929) 85 AT 87 ratio 2, where “cause of action” was defined as follows:

“A cause of action is the bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantiate right to make the claim against the relief or remedy being sought, Thus the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to substantive right capable of being claimed or enforced against the defendant. In other word the factual situation must constitute the essential ingredients of an enforceable right. Any facts relied upon by the plaintiff resulting from the act of the defendant which gives rise to a justifiable complaint is a cause of action.”

He also cited the Supreme Court’s definition of a cause of action in the case of CAPITAL BANCOPR LTD. VS. S.S.L. LTD. (2007) 2 NWLR (PT.1020) 148 AT PAGE 162, PARAS B-F.

The learned respondent counsel respectfully submitted that appellant’s suit disclosed no cause of action against the respondent having entered a consent judgment duly signed by both parties and their counsel in the earlier suit No: FC/IL/CS/24/2004 which consent judgment was based on the fact that the court had not determined the actual owner of the brand name “Ariel” in the suit between Procter and Gamble Company Limited and the appellant in suit No: FHC/L/CS/777/98 wherein the latter sued the former for passing off the trade mark on brand name “Ariel” which is also the subject matter of this suit.

He also submitted that the trial judge was right in stating that the phrase “cause of action” means reasonable cause of action, that is, something cognizable and triable by court. That it however ceases to be a reasonable cause of action if the statement of claim discloses not just a grievance but also an answer to it.

He further submitted that the respondent cited the cases of SODIPO VS. LEMMINKAINEN OY (1992) 8 NWLR (PT 258) 229 AT 242 PARAS C – E at the lower court which the learned trial judge held as instructive that what will amount to a cause of action must be based on facts and not evidence. That the suit was repeated to prejudice or overreach the appellant and to annoy or embarrass the respondent,

He therefore submitted that the appellant’s suit as constituted falls into the unreasonable cause of action group and urged the court to hold that the action of the appellant had not disclosed reasonable cause of action against the respondent. He also referred to the cases of DANTATA VS. MOHAMMED (2000) 7 NWLR (PT.664) 176 AT 20, PARA F; OSHOBOJA VS. AMUDA (1992) 7 NWLR (PT.250) 690 AT 702, PARAS C – G; UBN PLC. VS. UMEDUAGU (2004) 13 NWLR (PT.890) 3352 AT 364 – 365 PARAS G – B; NEPA VS. OLAGUNJU (2005) 3 NWLR (PT.913) 602 AT 623 PARAS C – F AND CO-OP BANK LTD. VS. LAWAL (2007) 1 NWLR (PT.1015) 287 AT 298, PARAS B – E.

From the foregoing argument, the learned respondent counsel urged this honourable court to uphold the decision of the lower court, and dismiss this appeal and discountenance the argument of the appellant. He referred the court to the cases earlier cited at pages 207, lines 15 – 16 of the record, and the cases of OFIA VS. EJEM (2006) 11 NWLR (PT.992) 652 AT 663 PARAS B -D; AND NWABUEZE VS. NWORA (2005) 8 NWLR (PT.926) 1 AT PAGE 17 PARAS F – G.

The appellant in his reply submitted that there is a cause of action in the matter.

He further contended that a cause of action is determined by looking solely at the plaintiff’s originating summons and the accompanied documents and not the counter-affidavit of the respondent as the lower court did in this case. He referred to the case of 7-UP BOTTLING CO. VS. ABIOLA & SONS BOTTLING CO. (2001) 13 NWLR (PT 730) PAGE 469 AT 495 C – F.

The learned appellant counsel therefore urged the Court of Appeal to discountenance the submissions contained in the respondent’s brief and allow the appeal.

RESOLUTION OF APPELLANT’S ISSUE FIVE

The cause of action of any suit filed is determined by the plaintiff’s claim, see ADESOKAN v ADEGOROLU (1991) 3 NWLR (PT.179) 293 AND ADEYEMI V. OPEYORI (1976) 9 – 10 SC 31.

In EGBE V ADEFARASIN (1987) 1 NWLR (PT.47), the erudite Jurist Oputa JSC, attempted a definition of a cause of action. His Lordship stated at page 20 thus:

“But it can safely be defined as the fact or facts which establish or give rise to a right of a action, ft is the factual situation which gives a person a right to judicial relief. A cause of action is to be distinguished from a right of action”

Encarta Dictionary defines cause of action as “facts that gives a person a right to judicial relief”. See also ADEKOYA V. FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT.1099).

To determine these facts, the appellant claims will be reproduced thus:

1. Having regards to the functions and powers of the defendant under and by virtue of section S of the National Agency for Food and Drug Administration and Control Act Cap. N1, LFN, 2004, whether or not the defendant has jurisdiction to enter, adjudicates or passes judgment on the plaintiff in respect of a matter which the defendant has described as that of a “pass-off”.

2. Assuming without conceding that the plaintiff’s use of the “packaging material/label “ARIEL” constitutes a pass off of ARIEL label in favour of any company whatsoever and particularity Procter and Gamble Limited (USA) (which is a foreign company) whether or not it is the duty and prerogative or within the jurisdiction of the defendant to pass- and pronounce judgment in respect of the supposed “pass-off” without allowing the said Procter and Gamble Limited to personally champion its own cause on line with due process of law,

3. Whether or not it is within the functions and powers of the defendant to determine and pronounce which of or between two supposedly competing registered proprietors of the trade mark ARIEL should use or apply the said trade mark ARIEL as a packing material, label or for sale, distribution or in relation to its products.

4. Having regards to the subsisting case between and Gamble Limited USA (as plaintiff) and the present plaintiff (as defendant) in suit No. FHC/L/CS/777/98 at the Federal High Court, Lagos in respect of the validity or otherwise of ARIEL as a trade mark and usage of same by the plaintiff for packaging material/label, whether or not the defendant has the power, jurisdiction, right or duty to make pronouncement or any order against the plaintiff in respect of the same subject during the subsistence of the said case.

5. Having regards to the fact that the defendant had earlier granted permission to the plaintiff to use the name “GLOBAL/ARIEL” as packaging material/label for its products vide its letter reference No, DRN/C.211/1 dated 21/07/2004, coupled with the fact that plaintiff has made a payment of a sum of N750,000.00 to the defendant for the registration of the said label and which said sum defendant had received, whether or not the defendant is not estopped from denying or preventing the plaintiff from using the said label or adding the said ARIEL to Its products or as packaging material or label for all or its products.

From the above it is crystal clear that there is a cause of action. However, the appellant had in suit no FHC/L/LS/777/98 pending then, before the Federal High Court, Lagos wherein the appellant was a defendant and the subject matter of the suit was on the use of brand name ‘Ariel’, Procter and Gamble Company Ltd in that case sued for passing off of the brand name which the appellant admitted; and it was consequent upon the said pending suit that a consent judgment was reached between the appellant and the respondent in suit no FHC/IL/CS/227/2002 on the same subject matter as the suit before this court.

This has put a stop to the steam in the appellant’s cause of action, See the case of RINCO CONSTRUCTION CO. LTD. (2005) 9 NWLR (PT. 929) 85 @ 87. CAPITAL BANCORP LTD. V. SSL LTD. (2007) 2 NWLR.

Issue five which deals with cause of action is resolved against the appellant, though there was a cause of action same has since been extinguished as was enunciated above.

Without being immodest, I cannot see why the ruling of the lower court should be tampered with. The appeal is devoid of merit. It is hereby dismissed. The ruling of the lower court of March 2006 is hereby affirmed. There is no order as to cost.

TIJJANI ABDULLAHI, J.C.A: I have had the privilege of reading in draft the lead judgment of my learned brother Denton-West, JCA just delivered. I am entirely in agreement with her reasoning and conclusions which led to the dismissal of te appeal for lack of merit. My noble Lord has painstakingly set out the facts of the case in extensor and rightly, in my view resolved all the live issues that call for determination in this appeal. I have nothing useful to add. I adopt her reasoning and conclusions as mine. I too dismiss the appeal as lacking in merit. I abide by all the consequential orders therein contained.

IGNATIUS IGWE AGUBE, J.C.A: I have been privileged to read in advance the lead judgment of my learned and noble Lord Sotonye Denton-West, JCA and as usual he has succinctly dealt with all the teething issues raised by parties in the Appeal at hand before arriving at the conclusion that the Appeal is unmeritorious and should be accordingly dismissed.

There is nothing more to add as I am in complete agreement with his reasoning and conclusions on all the issues formulated. I too shall affirm the ruling of the lower court of March, 2006.

III. JUDGEMENT

APPEAL against the ruling of Chukwurah Nnamani J. of the Ilorin Federal High Court delivered on Tuesday the 7th day of March, 2006.

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