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Kraft Foods Holdings Inc. v. Allied Biscuits Co. Ltd.

Court of Appeal

Judgement delivered on Tuesday, May 11, 2010
Citation: 53 NIPJD [CA. 2010] 506/2006
Suit No. CA/L/506/06      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

ADZIRA GANA MSHELIA, J.C.A
CLARA BATA OGUNBIYI, J.C.A.
HUSSEIN MUKHTAR, J.C.A. (Delivering the Lead Judgement)

Appearances: Obatosin Ogunkeye for the Appellant
Akinwunmi Salau for the Respondent

I. FACTS

This appeal is against the decision of the Federal High Court Lagos delivered by M.L. Shuaibu, J on the 14th February, 2005 wherein the learned trial judge struck out the originating motion filed by the applicant (the appellant herein) on 2nd January, 2004 on the ground that it did not disclose reasonable cause of action and that the appellant lacked locus standi to institute the action.

The reliefs sought for by the appellant in the originating motion dated and filed 2nd January were as follows:

‘1) An order that the register of trademarks may be rectified by expunging there from the whole entry relating to the above mentioned registered trade mark No. 31795.

2) Alternatively an order that the register of trade marks may be rectified by the deletion from the specification of goods for which the said trade mark is registered of cereals, bread, biscuits, cakes, pastry and confectionery, ice honey, treacle, yeast and baking powder.

3) An order that the costs of and incidental to this appeal may be paid by the respondent.’

These prayers were premised on the following sole ground:

“Up to the date, one month prior to the date of this application, for a continuous period of not less than five years there has been no bona fide use either by the respondent or by any other proprietor thereof for the time being of trade mark No. 31795 in connection with any of those goods in respect of which it is registered.”
In its reaction to the appellant’s originating motion, the respondent filed a counter affidavit and also a motion on notice dated 16th April, 2004 seeking for an order striking out or dismissing the appellant’s action on the following two grounds:

a) The notice of originating motion discloses no reasonable cause of action and is frivolous, mischievous, vexatious and an abuse of court process.

b) The appellant lacks locus standi to commence the action.

The respondent’s motion was successfully argued and granted by the lower court in its ruling delivered on the 14th February, 2005 whereby the appellant’s originating motion was struck out on the above two grounds.

The appellant was dissatisfied with that decision and therefore brought this appeal. The Notice of Appeal dated and filed 19th April, 2005 contains six grounds (particulars omitted) as follows:

“1) The learned trial judge erred in law in holding, without hearing arguments on the motion, that an originating motion discloses no reasonable cause of action.

2) The learned trial judge erred in holding that the originating notice of motion and supporting affidavit disclosed no reasonable cause of action when the only issue that he considered and decided upon was, whether or not the applicant had locus standi to seek the relief sought.

3) The learned trial judge misdirected himself when at page 16 of his ruling he held as follows: “It must be pointed out that the question for determination at this stage is not the use identical trade mark and/or non use of trade mark after lapse of certain period of registration which in my view are issues in the notice of originating motion. The issue is simply where lies the interest of the applicant the violation of which he seeks for the reliefs in the originating process.”

4) The learned trial judge misdirected himself in holding at page 18 of the ruling as follows: “title to the deed of assignment must first and foremost be ascertained before a party can use it for any purpose including an application to remove it from the register of a registered trade mark on ground of non use”

5) The learned trial judge erred in law in holding that without proving that trade mark RTZ under No. 33110 was validly assigned to it and that the assignment was duly registered, the applicant/appellant cannot apply for the removal from the register of trade marks, of trade mark RITZ registered under No. 3195.

6) The ruling is against the weigh of evidence.”

Three issues were distilled by the appellant from the above six grounds as follows:

“1) Whether the power vested in the court by order 25 rule 4 of the Federal High Court (Civil Procedure) Rules 2000 is exercisable in an action instituted by an originating notice of motion supported by an affidavit?

2) Whether, given the depositions of fact in the affidavit and further affidavit in support of the notice of originating motion, the appellant does not nave locus standi to institute the present action?

3) Whether the facts deposed to on the affidavit in support of the originating motion disclosed no reasonable cause of action”

The respondent adopted the three issues raised by the appellant for determination in this appeal, and went further to formulate a fourth issue as follows:

“Whether the appellant can approbate and reprobate on the same point in its brief of argument.”
The respondent’s counsel said that his issue arises out of the appellant’s brief of argument. One wonders whether an issue for determination ever arises from brief of argument. It is an elementary principle of law that issues for determination in an appeal must be distilled from a ground or grounds of appeal and no other source. The innovatory fourth issue raised by the respondent from appellant’s brief and which is completely alien to the grounds of appeal is incompetent and accordingly hereby struck out inclusive of the entire arguments proffered thereon. The respondent’s issues are therefore the same with those raised by the appellant.

Arguing the first issue, which is distilled from the first ground of appeal, the learned counsel for the appellant contended that order 25 rule 4 of the Federal High Court (Civil Procedure) Rules under which the lower court struck out the originating motion applies only to suits involving filing and exchange of pleadings which the appellant’s originating summons is not. He submitted that the lower court wrongly applied the said order 25 rule 4 to the action commenced by originating motion in which pleadings are not filed. The averments in the supporting affidavit, it was further argued, were evidence and not pleadings. It was further contended that order 25 rule 4 is intended to save the court’s valuable time from unnecessary taking of evidence where the statement of the case in the pleading show that even if all the facts alleged were proved; it wouldn’t have established a justiciable claim.

The appellant’s counsel further submitted that the order made by the lower court striking out the originating motion is as good as striking out a suit after full hearing instead of proceeding to deliver judgment. He urged the court to resolve this issue in favour of the appellant.

The respondent’s counsel argued that the provision of order 25 rule 4 of the Federal High Court (Civil Procedure) Rules is applicable to an action commenced by an originating motion because the term pleading includes an originating motion as defined in the Halsbury’s laws of England 4th Edition vol. 32 at page 3. Pleading is defined as thus:

“A document be it statement of claim, originating summons, originating notice of motion etc in which a party to proceedings in a court of first instance is required by law to formulate in writing his case or part of his case in preparation for the hearing.”

The respondent’s counsel said by this definition pleading includes any document by which a plaintiff initiates his case in a court irrespective of the nomenclature. The appellant’s originating summons and the supporting affidavit therefore qualify as pleading just like writ of summons and statement of claim. He referred to Sea Trucks Nig Ltd v Pyne (1995) 6 NWLR (pt. 400) 166 at 179-180 paras F-A where Akpabio, JCA (as he then was) held that in an action for enforcement of fundamental rights, the notice of motion and statement supporting the application take the place of writ of summons and statement of claim, while affidavit is evidence. The learned jurist expressed his views as follows:

“The law is that to find out what the cause of action in a claim is one must look at the writ of summons and statement of claim and no more. In the instant case, in order to find out what the cause of action was all that a trial judge has to do was to look at the writ of summon and statement of claim.

However, since this was an application for enforcement of fundamental rights, the writ of summons was replaced by the ‘Notice of Motion for an Order Enforcing a Fundamental Right’ as well as the ‘Statement in support of application for Enforcement of Fundamental Rights’ under the Constitution of the Federal Republic of Nigeria, 1979. There was no necessity to look at the affidavit in support, which actually took the place of plaintiffs evidence in ordinary proceedings.

A look at the motion and statement shows, as held by the trial court, that the claim of the respondent did not include or disclose any trade dispute by whatever definition.

The respondent submitted that the affidavit and the further affidavit supporting the originating motion should be regarded as pleading. In a case commenced by originating motion all the facts that could be averred in a pleading are deposed to in an affidavit. The depositior in the affidavits therefore, just like pleadings, show all the facts upon which the party initiating the action seeks to rely and puts the other party on notice of what is to be expected at the trial, and clearly ascertains the matter to be submitted to the court decision.

I am, therefore, of the firm view that the procedure under order 25 rule 4 under which the lower court acted in striking out the appellant’s brief though applicable to pleadings in actions commenced by writ of summons, will necessarily apply to other forms of commencement of action which disclose no reasonable cause of action. The provision of order 25 rule 4 lays emphasis on non disclosure of reasonable cause of action. It will, therefore, suffice if the notice of originating motion and the supporting affidavit, which are the initiating processes, do not disclose a cause of action. In other words the notice of originating motion together with the supporting affidavit being the initiating documents by which the action was commenced in the lower court must disclose a reasonable cause of action otherwise the provision of order 25 rule 4 may be properly applied to strike out the action. Thus, order 25 rule 4 is applicable to an action initiated by originating motion if there is no disclosure of cause of action by the notice of the motion and the supporting affidavit.

The procedure under order 25 rule 4 is, therefore, applicable to actions commenced by originating motion like the instant appeal provided there is no reasonable cause of action disclosed therein. The first issue is resolved against the appellant and the related ground one of the appeal accordingly fails.

On the second issue the appellant’s counsel further submitted that the issue of whether a plaintiff has locus standi in a case is determined exclusively from the statement of claim. See Owodunni v. Registered Trustees of CCC ‘Owodunni v Reg. Trustees of CCC (2000) 10 NWLR (pt.675) 315 at 354-355; Adebuga v Odunmeru (2003) 8 NWLR (pt. 821) 163 at 184; Ladjobi v Oguntayo (2004) 18 NWLR (pt. 904) 149 at 173.’

In this case, it was further argued, the supporting affidavit would be the only document the court will examine to determine whether the appellant has locus standi to institute the action. This, he added is deduceable from the provision of section 31 (1) and (2) (b) of the Trade Marks Act (hereinafter referred to as ‘the Act’ which provides as follows:

“1) Subject to this and the next following section, a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on an application made by any person concerned to the court or, at the option of the applicant and subject to section 56 of this Act, to the Registrar, on either of the grounds set out in subsection (2) of this section.

2. the said grounds are:
b) that up to the date one month, before the date of the application a continuous period of five years or longer elapsed during which the trade mark was a registered trade mark and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being.”

The appellant’s counsel further submitted that by the above provision, locus standi is determined by concern of the person instituting the action. Any person who qualifies as a ‘person concerned’ shall have locus standi to institute the action.

The appellant’s counsel also submitted that the intention of the legislature will only be understood with the background knowledge of the meaning of the phrase ‘trade mark’ and the pre-requisite for registration of trade mark as provided in section 18 (1) of the Act. He referred to section 67 of the Act which defines ‘trade mark’ to mean ‘a mark used or proposed to be used for the purpose of trading in particular goods.’ It is a pre-requisite for registration of a trade mark under section 18 of the Act that the trade mark ought to be registered must be one which the applicant is using or proposes to use in relation to particular goods. The intention of the legislature, he further submitted, is that a trade mark is one which is in use or intended to be used for the purpose of trading in particular goods. A registered trade mark, he further contended is not property which may be owned in perpetuity without any use being made of it, but must be used for the purpose of trading in the goods in respect of which it is registered.

The word ‘concern’ has been defined in the Oxford English Dictionary as meaning ‘to affect’ or ‘to worry’ the appellant by the depositions in the supporting affidavit has certainly shown how I was affected by the registration of the RITZ’ trade mark in respect of the class of goods listed on ‘the motion paper and in paragraph 8 of the supporting affidavit dated 2nd January, 2004.

Consequently, when the trade mark in question ceases to be used for the purpose of trading in some of the goods in respect of which it was registered for a period of five years preceding one month before the action was instituted, the door opens for the appellant or any other person concerned to initiate proceedings in court to protect his interest in the redundant trade mark as provided under section 31(1) and (2) (b) of the Act.

The appellant argued that the facts deposed to in the affidavit and further affidavit supporting the originating motion show that the appellant is desirous of selling its biscuit product branded as ‘RITZ’ in Nigeria, which aim cannot be lawfully achieved by the appellant whilst the trade mark No 31795 remains on the register of trademarks as provided under section 5 (2) of the Act. The appellant’s counsel urged the court to hold that the appellant is a ‘person concerned’ within the context of section 3 (2) (b) of the Act, and therefore has locus standi to institute the present action.

The respondent’s counsel contended that locus standi is determinable from the statement of claim as rightly submitted by the appellant’s counsel. He submitted that locus standi means standi a capacity to sue or, in other words, the right to institute legal action in a court of law. It is a condition precedent to determination of an action on the merits. Reliance was placed on this point on the cases of Thomas v Olufosoye (1986 1 NWLR (pt. 18) 609; Pepple v Green (1990) 4 NWLR (pt.142) 108 at 117. The respondent’s counsel further submitted and rightly so, that the right to sue or locus standi may be conferred by the constitution, a statute, customary law or contract but cannot be presumed or implied. See Odeneye v. Efunugh. He also, like the appellant’s counsel relied on section 31(1) and (2) (b) of the Trade Marks Act Capt. T 13 L.F.N. 2004 (supra) and further agrees with the contention of the appellant’s counsel that locus standi of the appellant to institute the present action must be determined by reference to the provisions of section 31 (1) and (b) of the Act. The respondent’s counsel was specific in agreeing with the appellant’s submission that a person who has locus standi to institute an action for the removal of a trade mark from the register of trade marks, for lack of bona fide use, is whoever qualifies as a ‘person concerned’ within the meaning of section 31 (1) of the Act.

Respondent’s counsel further submitted that a ‘person concerned’ is one whose rights or obligations have been or are about to be or are in imminent danger of being violated or invaded or adversely affected by the continuous presence of the trade mark sought to be removed from the register. It was further contended that holding otherwise will be tantamount to opening a floodgate of frivolous and vexatious applications from busy bodies and bystanders for removal of a trade mark from the register on the basis of non-use under the pretext of ‘any person concerned.’

The respondent further submitted that the appellant has not shown that any of its right or obligations has been adversely affected by the continuous presence of the trade mark sought to be removed from the register.

The facts relied upon by the appellant to seek for removal of the respondent’s trade mark in relation to certain specified goods in respect of which the trade mark was registered were deposed to in paragraphs 3 to 15 of the supporting affidavit which are hereunder reproduced verbatim:

“3) On 29th July, 2001 Nabisco Inc of 7 Campus Drive Parsippany, New Jersey USA executed in favour of the applicant a deed of assignment, assigning to the applicant several of its trade marks registered or pending registration in Nigeria together with the goodwill of its business concerned in the goods in respect to which the trade marks are registered. Included in the trade marks so assigned was the word mark ‘RITZ’ then registered in Nigeria under No 33110 in class 30. Now shown to me marked as exhibit JE 1 is a copy of the said deed of assignment.

4) Nabisco Inc aforesaid had its predecessors in title had, since 1934 been engaged in the manufacture and sale of biscuits under the brand name of ‘RITZ’. The biscuits have over the years been very popular and have been or are being sold in more than 48 countries around the world, including Nigeria.
5) Prior to the assignment of the aforesaid trade mark to the applicant there had been a series of contests between the respondent and Nabisco Inc over the right to register the word ‘RITZ’ as a trade mark in Nigeria.

6) In the first of such contest the respondent opposed the application of Nabisco Inc under No, TP 33526 to register a trade mark described as ‘RITZ & Device’ in class 30, on the ground that its own application under No TP 31795 to register the ‘RITZ’ as a trade mark in the same class 30 was earlier in time. The registrar upheld the respondent’s opposition and refused the application of Nabisco Inc to register ‘RITZ & Device’. Subsequently, Nabisco Inc. appealed to the Federal High Court. The appeal succeeded.

The respondent being dissatisfied appealed to the court of Appeal. At the Court of Appeal, the appeal of the respondent succeeded. Thereupon, Nabisco Inc. appealed to the Supreme Court. The Supreme Court however dismissed the appeal of Nabisco Inc. as a consequence the application of Nabisco Inc. under No. 33526, to register the trade mark described as ‘RITZ & Device’ remained refused.

7) In the meantime, during the pendency of the aforementioned appeals another application filed by Nabisco Inc. to register the word ‘RlTZ’ as a trade mark in respect of goods in class 30 was advertised in the trade mark journal. It was subsequently registered under No. 33110.

8) After the aforesaid decision of the Supreme Court upholding the decision of the registrar of trade marks to refuse the application of Nabisco Inc to register ‘RlTZ and Device’, the respondent applied to the registrar of trade marks for the issuance of a certificate of registration in respect of its application under No, TP795 to register the word mark ‘RITZ’ in class 30. Consequently on 13th August, 1998, registrar of trade marks issued the certificate of registration of the word ‘RITZ’ as a trade mark of the respondent, for use in relation to, goods in class 30 particularly: Coffee, tea, coca, sugar, rice tapioca, sago, coffee substitutes, flour and preparations made from cereals, bread, biscuits, cakes, pasty and confectionery, ice honey, treacle yeast, baking powder, salt, mustard pepper; vinegar, sauces, spices, ice.

The registration was numbered as No 31795 and took effect from 31st October, 1977. Now shown to me marked as exhibit JE 2 is a copy of the relevant certificate of registration. The said registration was subsequently renewed for a successive period of 14 years each from 31st October, 1984 and from 31st October, 1998.

Now shown to me marked as exhibits JE 3 and JE 4 are relative certificates of renewal of registration.

9) After the respondent’s trade mark ‘RITZ’ was registered under No 31795, the respondent filed an application before the registrar of trade marks seeking the removal from the register of Nabisco Inc. trade mark ‘RITZ’ registered under No. 33110.

10) Following the hearing of the aforesaid application for the removal of trade mark No 33110 from the register of trade marks, the registrar of trade marks in his ruling dated 6th November, 2003 ordered the removal of the said trade mark from the register of trade marks.

11) The applicant as the assignee of the goodwill of Nabisco Inc. in the products sold under trade mark ‘RITZ’ desires to exploit in Nigeria the goodwill which Nabisco Inc has acquired in relation to its trade in is ‘RITZ’ biscuits in Nigeria and elsewhere in the world. It therefore hopes to sell in Nigeria biscuits and other goods falling within the description of goods in class 30 if it can do so lawfully.

12) The subsistence on the register of trade marks of the respondent’s trade mark ‘RITZ’ registered under No. 31795 however constitutes an obstacle to the realization of the objective of the applicant to exploit in Nigeria, the goodwill attached to the business of Nabisco Inc comprised in the sale of ‘RITZ’ biscuits and other goods in class 30. It will therefore be beneficial to the applicant if trade mark No. 31795 can be removed from the register of trade marks for any just or legally valid cause.

13) I am aware, my firm having used its employees and agents, to make enquiries from traders in various markets in Lagos and elsewhere in Nigeria, that the respondent has never put on the market in Nigeria any biscuit or other confectionery product under the trade mark or brand name ‘RITZ’ since the day trade marks No. 31795 was entered in the register of trade marks.

14) I am also aware, my firm having in that regard, made enquiries from the National Agency for Food and Drug Administration and Control (NAFCAC), that as at 24th December, 2003, there was no subsisting registration with  NAFDAC for any goods or confectionery product under the brand name ‘RITZ’. Now shown to me marked as exhibit JE 5 is a copy of a letter dated 24th December, 2003 addressed to my firm attesting to that fact.

15) On the basis of the foregoing, I know as a fact that neither the respondent nor any person lawfully claiming through it has not made any bona fide use of the word mark ‘RITZ’ registered under No. 31795 in class 30 for a continuous period of not less than five years from a date one month prior to the filing of the application herein.”

The crux of the appellant’s case as submitted further in the reply brief is as contained in the averment in paragraph 11 of the supporting affidavit.

The appellant’s counsel observed that the appellant had in the past used the same trade mark in marketing its Nabisco ‘RITZ’ biscuits. It therefore retains what he called ‘residual goodwill’ He submitted that the appellant need not be the owner of the trade mark before it could seek to have it removed from the register of trade marks for non usage by the registered owner of the trade mark for more than five years.

The law is trite that locus standi is a necessary and indispensable pre-requite to initiation of an action in court. Locus standi in the instant case is determinable from the initiating processes comprising of the notice of originating’ motion and the supporting affidavit both dated and filed 2nd January, 2010. It is necessary that the initiating processes show a legal dispute between the person making the claim and the one against whom the claim is made. In other words, there must be a jusfiable and contestable issue, which entitles the initiator of the proceedings to bring the action. In the instant case the appellant has shown sufficient interest in the trade mark ‘RITZ’ as an assignee of the goodwill of Nabisco products that was once sold under that trade mark. Nabisco Incorporated is said to have acquired such goodwill in trading its ‘RITZ’ biscuits in Nigeria, and some other countries, and therefore wishes to revive the old goodwill by re-acquiring the ‘RITZ’ trade mark through legal process. This alone has shown sufficient locus standi on the part of the appellant to initiate the proceedings in question. It is not necessary for the appellant to show likelihood of success. The issue of locus standi does not depend on the success or merits of the case but is rather ascertainable from sufficiency of interest or legal right in the subject matter of the dispute. In the case of Ladejobi v Oguntayo (2004) J S.C. (pt. 1) 159 at 170-171 Musdapher, JSC observed thus:

“The term ‘locus standi’ denotes the legal capacity to institute proceedings in a court of law and is used interchangeably with terms like ‘standing’ or ‘title to sue’. It is the right or competence to initiate proceedings in a court of law for redress or assertion of a right enforceable at law: See Attorney General Kaduna State v Hassan (1985) 2 NWLR (pt. 453) 496. Adefulu v Oyesile (1989) 12 S.C. 43 (1989)5 NWLR (pt. 122) 377. It has been held that there must be a legal dispute between a person who makes a claim and the one against whom the claim is made and the action must be justiciable to resolve the dispute. In the case of Buraimoh Oloriode and Ors. v Simeon Oyebi and Ors: (19840 5 S.C. 1, the plaintiffs sued for a declaration of title under customary law to a piece of land in their favour. But their pleadings disclosed that the title to the land did not descend to them alone but to a large family of which they were only a branch. It was held that, in such circumstances, they have no locus standi to institute the action. In ascertaining whether the plaintiff or the plaintiffs have standing to initiate the proceedings, the statement of claim should be looked at, see Adesokan v Adegorolu (1997) 3 SCNJ at 15. It must also be remembered that the issue of locus stand does not depend on the success or the merits of the case but on whether the plaintiff or the plaintiffs have sufficient interest or legal right in the subject matter of the dispute. In an action involving a disputed chieftaincy title, it is not enough for the purposes of establishing locus standi for a plaintiff to merely claim to belong to one of the disputant families, he has to go further to state in his statement of claim what personal interest he has in the disputed chieftaincy and how that interest arose. See Obanla v Adesina (1999) 1 SCNJ 1. But where the interest is not personal but belongs to the whole family as where a non-member of the family is said to be nominated to the Chieftaincy for the whole family as a group would appear to have the legal standing to vindicate their right to nominate their member to the chieftaincy stool in a representative capacity. See Adefulu v Oyesile (supra).”

The appellant’s notice of motion and affidavit in support have clearly shown that the appellant has sufficient legal interest in the ‘RITZ’ trade mark the subject matter of the action instituted by the appellant at the court below. This issue is resolved in favour of the appellant and the related grounds (iii), (iv) and (v) accordingly succeed.

The third issue and final issue raises the question whether the facts deposed to in the supporting affidavit have disclosed a reasonable cause of action. It was alleged in the supporting affidavit that the respondent has failed to use the trade mark ‘RITZ’ under number 31795 in connection with biscuits and other confectionary products for 5 years 4 months and 18 days between the date the certificate of registration was signed and sealed which was 13th August 1998 (Exh. JE 2) and the date of instituting the current action b, the appellant which was 2nd January, 2004. This averment has met the requirement of section 31 (1) and (2) (b) of the Act, and therefore discloses a reasonable cause of action. He urged the court to so hold.

The respondent’s counsel however, submitted that there was no disclosure of a cause of action by the facts averred in the affidavit supporting the originating motion. Cause of action, he submitted, is the fact or combination of facts which give rise to a right to sue. It includes every material fact which has to be proved to entitle the plaintiff to succeed. He relied on U.B.N Plc v Umeoduagu (2004) 13 NWLR (pt. 890) 352 at 364-365 paras G-B where the Supreme Court defines cause of action thus:

“A cause of action is the fact or combination of facts which give rise to a right to sue. It includes all things which are necessary to give a right of action and very material fact which has to be proved to entitle the plaintiff to succeed.”

In the instant case fact or combination of facts that give rise to the appellant to institute an action seeking for the removal of the ‘RITZ’ trade mark No 31795 from the register of trade marks in respect of certain specified goods were statutorily defined under section 31 (1) and (2) (b) of the Trades Marks Act.

The allegation of complete non usage of the ‘RITZ’ trade mark by the respondent being the proprietor thereof for a continuous period of more than five years could, if proved by evidence, entitle the appellant to some remedy under the law. It therefore suffices as a reasonable cause of action.

I am satisfied that the depositions in the affidavit supporting the notice of originating motion have shown prima facie cause of action. The third issue is similarly resolved in favour of the appellant and the related second and sixth grounds of appeal thus succeed.

Having resolved the second and third issues in favour of the appellant, the appeal is meritorious and succeeds in part. The ruling delivered by M, L. Shuaibu, J  on the 14th February 2005 striking out the originating motion filed by the appellant on ground of lack of locus standi on the part of the applicant (the appellant herein) and non disclosure of reasonable cause of action has to be and is hereby set aside.

The originating motion dated and filed 2nd January 2004 shall be assigned by the Chief Judge of the Federal High Court to another judge of that court for trial on the merits.

I award the sum of N30,000.00 as costs in favour of the appellant against the respondent.

CLARA BATA OGUNBIYI, J.C.A: I have read in draft the lead judgment just delivered by my brother Mukhtar JCA and I also subscribe that the appeal has merit and succeeds in part. I would however wish to reaffirm that the question of non usage of the ‘RITZ’ Trade mark alleged against the respondent cannot be adjudged at this stage because it is certainly premature. This I say because the proof acceptable can only be by way of evidence which has not been adduced in the absence of the case yet to proceed to trial.

My brother had adequately dealt with the issues raised in this appeal and consequent to which it is also allowed by me in the same terms as the lead judgment inclusive of the order made to costs.

ADZIRA GANA MSHELIA, J.C.A: I have had the privilege of reading in advance the leading judgment of my learned brother Mukhtar, JCA just delivered. My learned brother has exhaustively dealt with the issues in the appeal and I am in agreement with his reasoning and conclusion. I adopt same as mine. The appeal is meritorious and same is also allowed in part by me. The ruling of the lower court delivered on the 14th February, 2005 is hereby set aside. I abide by the consequential orders made in the lead judgment inclusive of cost.

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