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Oleeve Nig. Ltd. & Anor. v. Dormath Trading Co. Ltd & Anor.

Court of Appeal

Judgement delivered on Tuesday, March 31, 2009
Citation: 52 NIPJD [CA. 2009] 236/2006
Suit No. CA/E/236/2006      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

AMIRU SANUSI, J.C.A.
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Lead Judgement)
SIDI DAUDA BAGE, J.C.A.

BETWEEN:

1. OLEEVE NIG. LTD
2. MR. EMMA NWACHUKWU (Trading under the name & Style of Genesis and Company Sued on their own behalf and representing all persons engaged In the business of importing, distributing, selling and stocking for the purpose of trading or otherwise dealing in products with the trade mark Peony Printing Ink……………….(Appellants)

AND

1. DORMATH TRADING CO. LTD
2. DONATUS MADUMERE……………………..(Respondents)

 I. FACTS

This is an appeal against the ruling of A. Lewis – Allagoa J. of the Federal High Court sitting at Enugu in Suit No. FHC/EN/CS/133/2004 delivered on the 4th October, 2005. The facts leading up to this appeal are stated hereunder as follows – By a writ of summons issued on the 6th May, 2004 and filed together with a statement of claim the Respondents as Plaintiffs claimed as per writ and paragraph 22 of the statement of claim as follows –

(a) An order of injunction restraining the Defendants jointly and severally and each of those upon whose behalf the said Defendants are sued and in either case whether acting by themselves their servants or privies or any of them or otherwise howsoever from perpetually doing any of the following acts:-

(iv) Infringing the trademarks, registered design, name and devise of Plaintiffs’ registered BRAND PRINTING INK registered under trade mark Number TP 64 702 in class 16 and design registration Number 9384 in the Registrar of Trade Mark and Register of Patent and Design Federal Ministry of Commerce Abuja.

(v) Passing-off or causing or enabling or assisting others to pass-off products deceptively styled PEONY Brand Printing Ink Purporting same to have been made, sold or being products of the Plaintiffs.

vi. Importing, distributing, selling, promoting, and offering for sale, supplying or otherwise dealing in products marked PEONY brand printing ink.

(b) Against the Defendants jointly and severally and each of those upon whose behalf they are sued by themselves, their servants, agents, privies or howsoever

AN ORDER FOR DELIVERY UP UPON Oaths to the Plaintiffs through its firm of legal practitioners of the infringing and passed off products or any other products to which the trade mark name “PEONY” or registered design is printed or pasted which are in the custody of the Defendants together with the invoices, receipts and other documents pertaining thereof.

(c) Account of that part of Defendants profit of the infringement and passing off of Plaintiff’s products or same without authorization purporting same to be products of the Plaintiff.

(d) N700, 000.00 (Seven Hundred Thousand Naira) being cost of this action.

The Appellants as Defendants filed their statement of Defence and Counterclaim on the 17th June, 2004.

Parties subsequently sought for and were granted leave of court to amend their respective pleadings. By a motion on notice dated the 1st March, 2005 and filed same day and brought pursuant to order 36 Rule 6 (1) and Rule 7 of the Federal High Court Rules, the present Appellants as Defendants in the court below prayed that court for an order directing that the following questions be tried separately and upon answering the questions in favour of the applicants, to enter an order dismissing the suit:

1. Whether the Plaintiffs (Respondents in this appeal) have either a right or a cause of action against the Defendants (Appellants in this appeal).

2. Whether the present suit (in the Court below) is properly constituted.

3. Whether the registration of the Patent and Design can be sustained in view of S. 22 of the Patents and Designs Acts (Cap 344) Laws of the Federation 1990). PARTICULARS of defect are given at paragraphs 11(C) and (D) of the further amended statement of defence and Counterclaim and on the showing of the plaintiffs themselves.

This motion and an affidavit in support of it can be found at pages 654 – 655 of the Record of Appeal. Shortly thereafter and before the previous motion was taken, the Respondents as Plaintiffs brought an application on notice dated the 9th March, 2005 and filed same day praying the court below for the following:

1. FOR AN ORDER PURSUANT to Order 26 Rule 20 and Order 25 Rule 4, Federal High Court Rules striking out the Amended Statement of Defence and Counterclaim on the grounds that it is an abuse of the process of Court and did not comply with the mandatory provisions of Order 48 Rule 7(2) and (3) and Order 48 Rule 8 of the Federal High Court Rules.

2. FOR AN ORDER PURSUANT TO ORDER 25 RULE 4 and order 26 rule 20 entering judgment to (sic) the Plaintiffs in terms of reliefs 22(a) and (b) of the further amended statement of claim.

3. AND for such further orders or other orders as this Court may deem fit to make in the circumstance.

This motion is supported by a nine paragraph affidavit and can be seen at pages 656 to 659 of the Record of Appeal. The Learned Trial Judge listened to counsel with respect to the two motions on notice filed on the 1st March, 2005 and the 9th March, 2005 and in his words as contained at page 739 of the Record of Appeal, “to give a final ruling on those issues raised.” With respect to the Defendants (now Appellants) motion dated the 1st March, 2005 and filed same day, the court in a considered ruling held as follows-

1. That the Plaintiff (Respondent in this Appeal) has a cause of action

2. The Suit is competent

3. The challenge on the validity of the Registration of the Plaintiff (Respondent) patent, designs and Trade Mark certificate cannot be considered, the defendant having failed to comply with proper procedure.

4. The motion to dismiss the action fails and all the issues raised in that motion are resolved in favour of the Plaintiff (Respondent in this appeal).

With respect to the Plaintiffs (now Respondents in this appeal) motion dated the 9th March, 2005 and filed same day, the learned trial Judge in the same considered ruling found in favour of the Respondents and struck out the Appellants Further Amended Statement of Defence and Counterclaim dated the 1st March, 2005 and filed same day in accordance with order 26 Rule 20 and order 25 Rule 4 of the Federal High Court Rules. The learned trial Judge also entered judgment in favour of the Plaintiffs (Respondents in this appeal) in accordance with order 25 Rule 4 and order 26 Rule 20 of the Federal High Court Rules as prayed for by the Plaintiffs (Respondents) in reliefs 22(a) and (b) of the Further Amended Statement of Claim. Costs in the sum of N30, 000 were also awarded in favour of the Respondents against the Appellants. It is this ruling that is the subject matter of this appeal. The Defendants have now appealed to the Court of Appeal by their Notice of Appeal dated the 4th November, 2005 and filed same day. The said Notice of Appeal is contained at pages 665 – 671 of the Record of Appeal and consists of eleven Grounds of Appeal which are reproduced below but without the particulars-

GROUNDS OF APPEAL

1. The court below was in error when it held that the issue whether the plaintiffs have a cause or right of action against the defendants had been decided in an interlocutory ruling on the 15th day of November, 2004 when (a) No such issues arose pursuant to order 36 rule 6(1) and Rule 7 of the Federal High Court Rules

(b) The parties as at 15th November, 2004 when the ruling was given are different from the parties as at 4th October, 2005 when this judgment was given.

2. The trial Court totally misunderstood the issues raised by the defendants pursuant to order 36 Rule 6(1) and Rule 7 regarding whether the Plaintiffs has (sic) or (sic) right of action against the defendants when he held that the action was competent.

3. The trial court was in a serious error when it held that action was competent when:-

(i) The 1st plaintiff is not a donee of any power of Attorney to register the said trade mark and design of “PEONY”

(ii) The 2nd Plaintiff not having been stated to be a registered owner of any patent or design or trade mark did not bring his action pursuant to such registration under the Companies and Allied matters Act but under the common law.

4. The trial court was in error when it entered judgment in favour of the plaintiffs pursuant to order 25 Rule 4 and Order 26 Rule 20 Federal High Court Rules after striking out the defendants statement of defence and counterclaim for being an abuse of court process without setting down the petition of the defendants for hearing or striking same out.

5. The Learned trial Judge erred in law when he struck out the statement of defence and counter claim of the defendants for non compliance with order 48 Rules 7(3) of the rules of court.

6. The court below was in error when it struck out the statement of defence and counterclaim for non compliance with order 48 Rules 7 ((3) when the said order does not pertain to patents and designs.

7. The court was in error when it entered judgment for the plaintiff when there was no proper suit before the court.

8. The court was in error when it went ahead to give judgment in favour of the plaintiffs when the matter was not yet ripe for hearing.

9. The court below was in error when it did not enter judgment in favour of the defendant but rather struck out the statement of defence and counterclaim when it was clear that there was total non compliance with sections of the patents and designs act.

10. The court was in a serious error when it placed reliance on order 8 Rule (1) as subjecting the said order to order 48.

11. The learned trial Judge erred in law when he placed reliance on the certificate of registration of trade mark issued to 1st plaintiff when the said certificate is not admissible in law.

From the 11 grounds of appeal the Appellants have distilled the following four issues for determination by the Court of Appeal –

1. Was the action of the Plaintiffs properly constituted and before the proper court as to give them either a right or a cause of action?

– Grounds 1, 2, 3 and 7.

2. Was the court right in entering judgment for the plaintiff upon its motion without hearing the Appellants’ notice of petition or dealing with it in any way and when the matter was not ripe for hearing? Grounds 4 and 8.

3. Was the trial court right to have struck out the statement of defence and counterclaim and the objection to the registration as raised by the Appellants?

– Grounds 5 and 6

4. Did the court properly place reliance on the Certificate of registration when

(a) The conditions precedent to registration had not been met and

(b) The Certificate stated that same should be not used in any legal proceedings – Grounds 9 and 10

These issues are contained at page 3 of the undated Appellant’s Brief of Argument filed on the 21st September, 2006, which Brief was adopted and relied upon together with the undated Appellants Reply brief filed on the 25th April, 2007 by Oba Maduabuchi esq of counsel for the Appellant on the 4th February, 2009 when this appeal came up before this Court for hearing. He urged the Court to allow the appeal.

The Respondents on their part have distilled the following four issues for the determination of this Court-

1. Whether the trial Judge was correct when he held that his ruling of 30th day of November, 2004 created an issue estoppel on the issue of whether the Respondents had a right or cause of action against the Appellants – Grounds 1 and 2).

2. Whether the action initiated by the Respondents was properly constituted (Grounds 3, 4 and 7)

3. Whether the trial Court was correct in striking out the paragraphs of the Further Amended Statement of Defence and Counterclaim for failure to comply with order 48 Rule 7(3) and order 48 Rule 8 of the Federal High Court Civil Procedure) Rules (Grounds 6, 7, 8, 9 and 10).

4. Whether the trial Court was right to rely on the Certificate issued to the Respondents by the Registrar of Patents and Design and Registrar of Trade Mark.

The issues are contained on page 3 of the Respondent’s Brief of Argument dated 15th March, 2007 and filed on the 16th March, 2007 but deemed properly filed on the 19th March, 2007 following the grant by this Court on that day of an application on Notice brought by the Appellants/Applicants for extension of time to file the Respondents Brief of Argument out of time and to deem the said Brief filed separately as properly filed and served. On the 4th February, 2009 when this appeal came up for hearing, Ben Osaka of counsel for the Respondents adopted and relied on the Respondents’ Brief of Argument and urged this Court to dismiss the appeal.

A cursory look at the issues show that issue 1 in the Appellants Brief is similar to issue 2 in the Respondent’s brief; Issues 2 and 3 in the Appellants brief are similar to issue 3 in the Respondents’ Brief while issue 4 in the Appellants’ brief is similar to Issue 4 in Respondent’s Brief. For the determination of this appeal I shall and have used the Appellant’s Brief of Argument with only some minor modifications to accommodate same issues raised by the Respondents. It is settled on the authorities that a court can reframe issues formulated by the parties for purposes of inter alia clarity.

See OKORO V. THE STATE (1988) 12 S C 191; LATUNDE & ANOR V BELLA LAJUNFIN (1989) 5 S C 59.

Appellants have treated issues 1 and 4 together in the Appellants Brief. The issues will now read –

ISSUE 1 – Was the action of the Respondents properly constituted?

ISSUE 4 – Was the Court right in relying on the Certificate of Registration issued to the Respondents?

It is proposed to take them together. Appellants have submitted that the action as brought by the Respondents was neither properly constituted nor was it in the proper court. Counsel for the Appellants contended that the donee of a power of attorney can and should only act in the name of the donor of the power of attorney and can only bring an action in the name of the donor of the power of attorney. Reliance was placed on the following cases – VULCAN GASES LTD V. GFIG INDUSTRIES LTD (2001) FWLR (PART 53) page 1 at 26; MELWANI V. FIVE STAR INDUSTRIES LTD (2002) FWLR (PART 94) page 31 at 43.

Appellant submitted that there is no doubt that the 2nd plaintiff is an agent of Shanghai Quifan Import and Export Company Ltd and by his pleading in this amended statement of claim was appointed sole agent for the importation, distribution, sale and marketing of Peony Printing inks in Nigeria. Appellant went further to submit that it is also not in dispute that the 2nd plaintiff (2nd Respondent in this appeal) did not register any Trade Mark nor any patent nor any design and inquired whether Respondents case was properly before the Court. Counsel went on to say that section 251 of the Nigerian Constitution 1999 vests jurisdiction on the Federal High Court in matters relating to copyright, patent, designs, trade marks, business names, commercial and industrial monopolies, combines and Trusts, standards of goods and commodities and industrial standard and that since the 2nd plaintiff (2nd Respondent in this appeal) does not pretend to have registered any trade mark, patent or design, the Suit (now on appeal before this court) was not brought pursuant to the transgression of any of the provisions of the Trade Mark Act or Patents and Designs Act or Patents and Designs Act. Counsel further contended that the fact that the 2nd Respondent is the Managing Director of the 1st Respondent does not confer upon him locus to bring an action in his own personal names for an infraction of the rights or privileges accruing to the company he manages. Neither section 251 of the 1999 Constitution nor the Trade Mark Act nor the Design and Patents Act gives locus to the Managing Director of a company to bring an action on behalf of another person whose Trade Mark Patent or Design has been infringed Appellant further submitted. Appellant therefore urged the court to hold that the action of the 2nd Respondent is not properly before the Federal High Court as the Certificate of design pleaded in the further amended statement of claim is in the name of Dormath Trading Company Ltd and not the name of the plaintiff. Reliance was placed on AYMAN ENTERPRISES LTD V. AKUMA INDUSTRIES LTD (2003) FWLR (PART 166) 562 AT 585; PATKUN INDUSTRIES LTD V. NIGER SHOES MANUFACTURING CO LTD (1988) 5 NWLR (PART 93) 138. With respect to the 1st Respondent, Appellant submitted that the court below was wrong to have refused to strike out the Suit when the registration of the design “PEONY” by the 1st Respondent was wrong in that the original owner did not authorize it to register the design. Appellant raised the question of non compliance with sections 13(1), 14(2) and (3) and 15 of the Patents and Designs Act and submitted that any particular design that had been made available to the public before the date of the application for registration is no longer new. Reference was made in this regard to the Respondents pleading in paragraphs 8 and 10 of the Further Amended Statement of Claim and the Respondents showing that the product had been in existence for over fifteen years and known to the public for fifteen years before the application for registration was made. That being so, the product cannot be regarded as new as to satisfy section 13(1)(a) of the Act and if it does not satisfy S. 13(1)(a) then pursuant to section 22(1) the court should declare the registration void. Appellant submitted that authorization was never granted by the original owner to the 1st Respondent to register in his name any trade mark, patent or design by the shanghai Quifan Import and Export Co. Ltd. Appellant’s counsel submitted that by section 22(1) the registration of the design in favour of the 1st Respondent is null and void and if the declaration is made, the 1st Respondent would have lost the locus to bring the action and the action would be incompetent.

Responding to these two issues by the Appellant, the Respondents in their Brief of Argument submitted that the authorities relied upon by the Appellant to show that the action initiated by the Respondents was not properly constituted are distinguishable from the present case. These authorities are VULCAN GASES LTD. V. GFIG INDUSTRIES LTD. (2001) FWLR (PART 53) 1 at 26; MELWANI V. FIVE STAR INDUSTRIES LTD. (2002) FWLR (PART 94) p. 31 at 43; UNITED NIGERIAN COMPANY LTD. V. NAHMAN (2000) FWLR (PART 27) 1988. Respondent submitted that none of the above named cases dealt with the acquisition of right under the Patent and Trade Mark Act. It was further submitted that the Respondents having acquired a right recognized by Patent and Design Act and the Trade Mark Act were entitled to institute this action to protect the said right recognized by law. Respondents submitted that from the wordings of this Power of Attorney, the Respondents were duly recognized to register the product in Nigeria and that the 1st Respondent, pursuant to the authority of the power of Attorney decided to register the said product. The Respondents went on to contend that the Appellants cannot compel the Respondents nor choose for them in whose name the registration should be affected. Respondents submitted that it is not in doubt that the Respondents were duly issued Certificate of registration of the design or label and the 1st Respondent having registered the design has a right in accordance with section 19(1) (b) of the Patent and Design Act to institute this action to prevent the infringement of the design. It is the contention of the Respondents that they are the registered owner of the Trade Mark Peony and the letter D meaning Dormath inscribed at the bottom of the container and that the Respondents had a right to institute this action. Reliance was placed on the case of DYKE TRADE LTD V. OMNIA (NIG) LTD (2000) 12 NWLR (PART 680) 1 at 8. The Respondents submitted that the registration of both the design and the trade mark by the 1st Respondent was proper and that they were entitled to commence this action at the Federal High Court. It is also the contention of the Respondents that the trial court was right when it relied on the Certificate issued by the Registrar of trade mark and patent and designs to hold that the action is competent. The Respondents went on to submit that by virtue of section 22 of the Trade Mark Act, their application was accepted by the Registrar and they were duly issued a Certificate pursuant to section 22(3) of the Trade Mark Act. Reference was made by the Respondent to section 49 of the Trade Mark Act which provides that in all legal proceedings relating to a registered trade mark the fact that a person is registered as proprietor of the trade mark shall be a prima facie evidence of the validity of the original registration of the trade mark and all subsequent assignments and transmission. Respondents went further to submit that it is settled in the case of DYKE TRADE LTD. V. OMNIA NIG LTD (2000) 12 NWLR (PART 680) page 1 at page 8 that Trade Mark when registered will entitle the proprietor to sue or institute an action for any infringement of the Trade Mark and that Registration entitles the proprietor to the exclusive use of the trade mark and also right to sue for passing off the goods of the proprietor. Respondents submitted that this decision of the Supreme Court empowered the trial court to place reliance on the Certificate of registration of Trade Mark to hold that he has jurisdiction and that the suit before the court is competent.

It is perhaps a good starting point to firstly examine the Power of Attorney reference to which is being made in this appeal. It is contained at pages 509 and 518 of the Record of Appeal. The Power of Attorney at page 9 reads as follows-

POWER OF ATTORNEY

“We (Shanghai Qifan Import and Export Company Ltd) hereby authorize Mr. Donatus Onuwa Madumere (Director of MIS Dormarth Trading Co. Ltd, 35 New Market Road, Onitsha, Anambra State Nigeria) as our sole agent for “Peony” Brand Printing ink in Nigeria.

So they have the right to take legal action to settle any problem regarding “Peony” Brand printing ink taken place in Nigeria.

And at page 518 is this inclusion – “So Mr Donatus Onuwa Madumere (Domarth Trading Co. Ltd) have the right to register the trade Mark “Peony” brand printing ink in Nigeria and in order to protect the interest of “peony” brand printing ink, they can take legal action to settle any problem, regarding “peony” brand printing ink taken in Nigeria.”

The purport of the power of attorney is clear. It gives the Respondents an acquired right including right to institute legal action to safeguard the “peony” brand product. It is also clear from the wording of the power of Attorney that the Respondents are expected to register the product in Nigeria. The word used in the power of Attorney is “they” and is not confined to anyone of the Respondents only. Details of official documentation with respect to the registration of the product by the 1st Respondent – DORMATH TRADING CO LTD can be seen at pages 446 – 450 of the Record of Appeal while the Certificate or Registration of design of the “Peony brand printing ink label” is contained at page 521 of the record of appeal. What is the effect of registration? Section 19 Cap P2 of the Patents and Designs Act of the Laws of the Laws of the Federation of Nigeria 2004 deals with rights conferred by registration and it states as follows – 19 (1) Registration of industrial design confers upon the registered owner the right to preclude any other person from doing any of the following acts –

(a) Reproducing the design in the manufacture of a product

(b) Importing, selling or utilizing for commercial purposes a product reproducing the design

(c) Holding such a product for the purpose of selling it or of utilizing it for commercial purposes.

Section 19 (3) (a) provides that “the rights conferred by this section shall extend only to acts done for commercial or industrial purposes.” It should be clear from all of the above that the Respondents are entitled to protect the “peony” printing ink product from any type of infringement. In DYKTRADE LTD V. OMNIA NIG LTD (2000) 12 NWLR (PART 680) pages 1 at page 8 paras G – H the Supreme Court had this to say, “Trade Mark when registered will entitle the proprietor to sue or institute an action for any infringement of the trade mark. Registration entitles the proprietor to the exclusive use of the trade mark and also the right to sue for passing off the goods of the proprietor”. In paragraphs E – F on page 9, some light was thrown on who constitutes a proprietor —- “The word “proprietor” may be misleading if taken literally because what is being protected is the goodwill of a business not a proprieting right as such. Paragraphs D – E “It is therefore clear that from the wording of the Act nobody acquires the status of the proprietor unless that person in relation to the trade mark is the owner, importer, exporter, shipper or any other person for the time being possessed of or beneficially interested in the goods to which the trade mark is applied.” .. .. It is clear that the Respondents fit this bill. The purport of section 19(1) of the Patents and Design Act has been judicially pronounced upon in the case of PETER E. VENTURE (NIG) LTD V. GAZASONNER IND LTD & ANOR (1998) 6 NWLR PART 555 page 619 at 632 paragraphs G – H ” By the above provision the Appellant should have a right to preclude any other person including the Respondents from producing and/or marketing the design content in Exh. PV 1.”(underlining mine for emphasis)

In this appeal it is the Respondents that are being referred to and who should have a right to preclude any other person including the Appellants from infringing the trade marks, registered design of PEONY BRAND PRINTING INK e.t.c. The Respondents in their pleadings – Further amended statement of claim stated that they are the sole importers of Peony Printing ink. They successfully applied for registration and the Appellants who failed to object to the grant of the Registration of the trade mark cannot challenge the Respondents right to institute action against the infringement of the trade mark at the Federal High Court. See PATKUN INDUSTRIES LTD V. NIGER SHOES MANUFACTURING CO LTD (1988) 5 NWLR PART 93. It is hoped that it would have become clear from all what has been said so far that the Respondents having acquired some right under the patent or Trade Mark to institute action to prevent the infringement of Peony product, the contention by the Appellant that the Respondents must commence action in the name of the donor of a power of Attorney is not correct and all the cases cited by the Appellants to that effect are inapplicable. These cases are VULCAN GASES LTD V GFIG INDUSTRIES LTD (2001) FWLR (PART 53) page 1 at 26; MELWANI V. FIVE STAR INDUSTRIES LTD. (2002) FWLR (PART 27) 1988.

The action was properly constituted and before the Federal High Court and the reliance placed by that Court on the certificate of registration was proper. Accordingly I resolve issues 1 and 4 in favour of the Respondents and against the Appellants.

Issues 2 and 3 of the Appellants’ Brief of Argument have been argued together and I intend to adopt the same procedure. I need not repeat those issues as they have already been spelt out in this write-up. Reading through these issues in the Appellants’ Brief of argument leaves one with the impression that Appellants’ main grouse is that the trial court struck out the further amended statement of defence and counter claim for being an abuse of the process of court. The Respondents Motion on Notice of the 9th February, 2005 is two plunged-

An order pursuant to order 26 Rule 20 and order 25 Rule 4 of the Federal High Court Rules striking out the Further amended statement of defence and counter claim for –

(i) Being an abuse of the process of court.

(ii) Non compliance with the mandatory provisions of order 48 Rule 7 (2) and (3) and order 48 Rules 8 of the Federal High Court Rules.

If I may deal with the second arm of this prayer first order 48 Rule 7 (3) especially provides that a party who disputes the validity of the registration of a registered trade mark shall serve along with the pleadings, particulars of the objections to the validity of the registration on which he relies in support of the allegation of invalidity. What the Respondents are contending is that this is a mandatory provision and it was not complied with. To the extent that the word “SHALL” is employed here, that provision is no doubt mandatory and has to be complied with. Has it been complied with by the Appellants? The provision is not fraught with any ambiguity when it states that “particulars of the objections to the validity of the registration” shall be “served along with the pleadings” There must be a separate document where the particulars of the objections are embodied. I am afraid that has not been complied with because there is no such document by the Appellants embodying the particulars of the objection. On the other hand order 48 Rule 8 of the Federal High Court Rules simply provides that an application for the nullification of a patent or design as the case may be shall be by petition. Here again there is no ambiguity. The commencement of such an action cannot for example be by writ of summons. Furthermore it must be by separate action. It is not expected to be an action commenced within an action. Without any hesitation I completely agree with the Respondents that the petition bearing the Suit Number

FHC/EN/CS/133/2004 is an anomaly in the sense that the petition is brought within the Suit which is itself commenced by a writ of summons. For the Appellants to have initiated a petition within a Suit initiated by the Respondents by a Writ of Summons is itself an abuse of process. For the avoidance of doubt such a petition cannot be said to exist as the Appellants have erroneously canvassed and is accordingly null and void. Order 48 Rule 7(3) and order 48 Rule 8 of the Federal High Court Civil Procedure Rules are special procedures which must be complied with. See DANGOTE V. CIVIL SERVICE COMMISSION (2001) 4 S.C. PART 11, page 43 at 56; KRAUS THOMPSON V. N.I.P.S.S. (2004) 2 NWLR PART 901, page 60 at 61. The trial Court was therefore right to have struck out the Further Amended Statement of Defence and Counter Claim for failure to comply with order 48 Rule 7(3) and order 48 Rule 8 of the Federal High Court Civil Procedure Rules. Was the Court right in entering judgment for the Respondents pursuant to order 25 Rule 4 order 26 Rules 20 of the Federal High Court (Civil Procedure) Rules?

Order 25 Rule 4 enjoins a court to strike out any pleading if it discloses no cause of action or defence or if it is frivolous or vexatious. On the other hand order 26 Rule 20 apart from virtually repeating these same powers as in order 25 rule 4 goes further to enjoin a trial court to strike out a pleading if it is an abuse of the process of the court and at its discretion may also give judgment to the plaintiff or defendant as the case may be. The Learned trial Judge noted that the Appellants had failed to follow the procedures stipulated by order 48 Rule 7 (2)(3) and order 48 Rule 8 of the Rules of court and chose to follow a procedure of its own which was an abuse of court process. The learned trial Judge also noted the failure of the Appellants to file a Counter affidavit to the Respondents motion dated the 9th March, 2005 asking the court to strike out the Further Amended Statement of Defence and Counterclaim filed by the Appellants. It is settled law that averments in an affidavit which are not countered are deemed to be true. Appellants have contended that paragraphs 9 and 10 raise a defence to the action. Here again I think the Respondents are right to contend that these paragraphs are an admission that the Appellants imported the goods in question. I therefore think that the trial Judge was right in relying or order 25 rule 4 of the Federal High Court (Civil Procedure) Rules to enter judgment for the Respondents. Issues 2 and 3 are therefore resolved in favour of the Respondents and against the Appellants.

On the whole I find the appeal unmeritorious. I dismiss the appeal and affirm the ruling of the lower court delivered on the 4th October, 2005 in Suit No. FHC/EN/CS/133/2004. There shall be N30, 000.00 costs in favour of the Respondents against the Appellants.

AMIRU SANUSI, J.C.A.: I agree.

SIDI DAUDA BAGE, J.C.A.: I had the benefit of reading in draft the Judgment of my learned brother STANLEY SHENKO ALAGOA, (JCA).

I agree with reasons given and conclusion reached. I abide by all the consequential Order made therein.

 Appearances: Oba Maduabuchi Esq.For Appellant

                        Ben Osaka Esq.For Respondent

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