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Zeneca Ltd. v. Jagal Pharma Ltd.

Court of Appeal

Judgement delivered on Wednesday, January 31, 2007
Citation: 50 NIPJD [CA. 2007] 362/2003
Suit No. CA/L/362/2003      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

ADZIRA GANA MSHELIA, J.C.A (Delivering the Lead Judgement)
ISA AYO SALAMI, J.C.A.
PAUL ADAMU GALINJE, J.C.A.

Appearances: Mr. Obatosin Ogunkeye for the Appellant
Prof. Olarewaju Fagbohun for the Respondent

 

I. FACTS

The Respondent herein, by a Writ of Summons and a statement of claim made various claims against the Appellant at the Federal High Court Lagos, (henceforth to be known as the lower Court). The writ and the statement of claim are at pages 122-128 of the record of this appeal. As the proceedings progressed the statement of claim became subject of amendment and further amendment. The final amended statement of claim before judgment of the lower Court is styled 2nd Amended statement of claim which was filed pursuant to an order of the lower Court dated 19th of February 2002. This statement of claim is at pages 616-621.

At paragraph 22 of the 2nd Amended statement of claim, the following claims were set out thus: –

(i) A declaration that the Agreement dated 1st May, 1996 between the plaintiff and the 1st Defendant is null and void ab initio on the ground of fraud and fraudulent misrepresentation on the part of the 1st Defendant.

(i) An order setting aside the Agreement dated 1st May 1996, between the plaintiff and the 1st Defendant on the ground of fraud and fraudulent misrepresentation on the part of 1st Defendant.

(ii) an order of rescission of the Agreement dated 1st May, 1996 between the plaintiff and the Defendant.

(iii) A declaration that the plaintiff has been the lawful user of the mark “TETMOSOL” in Nigeria at all material times in this suit;

(iv) An order of removal of the mark “TETMOSOL” from the Register for lack of bona fide use by the 1st Defendant.

(v) An order for rectification or varying the entry in the Register in favour of the Plaintiff with respect to the mark “TETMOSOL.”

(vi) An order of perpetual injunction restraining the 1st and 3rd Defendants either by themselves, their agents, servants, privies from dealing with or transferring the mark “TETMOSOL” to the 2nd Defendant or any other person and from interfering howsoever with the Plaintiffs use of the mark “TETMOSOL”.

(vii) An order of perpetual injunction restraining the Defendants either by themselves, their agents, servants or privies or any of them or otherwise howsoever from misrepresenting or causing, enabling or assisting others to misrepresent or offer for sale medicated soap with the name “TETMOSOL” or any other medicated soap in a manner identical to that of the Plaintiffs product or any colourable imitation thereby without adequately distinguishing such good from the Plaintiffs manufacture.”

IN THE ALTERNATIVE to reliefs (iii)-(viii) above, the Plaintiff claims as per the particulars stated under paragraphs 18 (i) to (ix) hereof being the amount incurred for the purchase of the “TETMOSOL” manufacturing plant/equipment together with other operational costs.

(viii) The sum of $1.94 million (one million, nine hundred and forty million United State Dollars) being the amount over paid by the Plaintiff on the purchase of Monosulfiram BP from the 1st Defendant since November 1992 as a result of the delusive value placed on it by the 1st Defendant.

(xx) Interest on the said sum of $1.94 million at the rate of 21% per annum from November 1992.

Paragraph 18 which the Plaintiff refers to in his alternative claim, does not contain sub-paragraphs. For the avoidance of doubt, paragraph 18 of the 2nd Amended Statement reads thus: –

“At the hearing of this suit the Plaintiff will rely on its various letters to the 1st Defendant and the reply of the 1st Defendant thereto in respect of the “METASOL affair”.

However at paragraph 19 (i)-(ix) of the same statement of claim, the Plaintiff set out the cost of various items listed therein and claims the total cost of the items plus 21% per annum of the total sum. I think this is the claim that is referred to in the alternative claim. My guess here is not important in this appeal, since the alternative claim was not awarded and therefore has nothing to do with this appeal.

In reaction to the claim of the Plaintiff/Respondent, the Appellants filed a joint statement of defence of 40 paragraphs and at paragraph 40 set out a counter claim. This statement was amended three times before judgment was delivered. In the 3rd and final amended statement of Defence dated 19th March 2002 which is at pages 624-632 of the record of appeal, the 1st Appellant counter claimed as follows: –

“(a) An information to restrain the Plaintiff whether by its directors, officers, servants or agents or any of them or otherwise howsoever, after the expiration of the distribution agreement dated the 1st July 1996, from doing the following act that is to say, infringing the 1st Defendant’s Registered Trade Mark No. 4718.

(b) An enquiry as to damages or at the 1st Defendant; option an account of profits and payments of all sums found due upon taking such inquiry or account in respect of-

(i) The infringement by the Plaintiff of the trade mark No.47618.

(ii) The breach by the Plaintiff of the agreement entered into between the Plaintiff and the 1st Defendant on 1st July 1996.”
Plaintiff further filed an amended reply to 3rd Amended Statement of Defence of all the Defendants and incorporated in it the statement of defence to the counter claim of the 1st Defendant.

Pleadings were filed and exchanged, and the matter was heard. At the end of the hearing and in a considered judgment, Sanyaolu, J. granted all the reliefs set out in paragraph 22 (i)-(viii) of the statement of claim and dismissed the counterclaim of the Appellants. As a result of this development the Appellant’s who were the Defendants at the lower Court are unhappy and aggrieved. They have now appealed to this Court. Their joint notice of appeal dated 13th of January 2003 and filed the same date is at pages 1256-1260 of the record of this appeal. The notice of appeal contains seventeen (17) grounds of appeal.

In line with the relevant rules of this Court, briefs of argument were filed and exchanged and the appeal came up for hearing on the 1st of November 2006. Mr. Obatosin Ogunleye, learned counsel for the Appellant identified the Appellants’ brief dated 16th April 2004, and the Appellants Reply Brief dated 11th August 2005 and filed the same date. Learned counsel adopted both and urged the Court to allow the appeal. Professor Olanrewaju Fagbohun, learned counsel for the Respondent identified the Respondent’s brief of argument dated and filed on the 8th June 2005. He adopted same and urged the Court to dismiss the appeal.

It is to be noted here that the preliminary objection which is incorporated in the Respondent’s brief of argument particularly at pages 1-2 was withdrawn by learned counsel for the Respondent on the day the appeal was heard and same was struck out.

The Respondent and the 2nd Appellant in this appeal are limited liability companies registered in Nigeria. The 1st Appellant is a limited liability company while the 3rd Appellant is a Holding Company of the 1st Appellant. Both are registered in the United Kingdom (U.K).

By its letter of 4th September 1991, which is exhibit A in this appeal, the Imperial Chemical Industries Pharmaceutical (Henceforth to be referred to as ‘ICI’) a company registered in U.K, approached the Respondent with a proposal for:-

1. To explore the possibilities of developing a direct business relationship between ICI and the Respondent to market ICI’s current range of products –

2. To share with the Respondent details of product forecasts and other information to enable the Respondent to assess whether there was any benefit in progressing a closer relationship.

The discussions that followed produced two agreements, namely the Trademark Agreement and the Distribution Agreement dated 17th July 1992 and 1st May 1992 respectively. The Trademark Agreement which is marked exhibit B licenced the Respondent to use a number of trademarks belonging to ICA in Nigeria, including the trademark ‘Tetmosol’ registered in class 3 under No. 47618. While in the Distribution Agreement exhibit B1 the Respondent was appointed the exclusive importer, processor and distributor of certain products manufactured by ICI including ‘Tetmosol’ in Nigeria. Both agreement were for a period of four years each. They were therefore to terminate on the 30th April and 16 July, 1996 respectively.

Following the execution of exhibits Band B1, ICI applied to the Registrar of Trademarks to register the Respondent as a Registered user of trademark ‘Tetmosol’ in class 3 registered under No. 47618. The Respondent was subsequently registered as a registered user of the Trademark ‘Tetmosol’.

Shortly after the execution of exhibits Band B1 ICI transferred certain of its businesses, including its ‘Tetmosol’ soap business to the 1st Appellant. As a result of this transfer ICI wrote two letters to the Respondent informing it of the transfer of certain of its business to the 1st Appellant with effect from 1st January 1993 and requiring the Respondent to signify its acceptance of the substitution of the 1st Appellant for ICI in both exhibits B and B1. The 1st letter of 27th November 1992, which is exhibit C referred to the Distribution Agreement. The Respondent endorsed its acceptance of the substitution of the 1st Defendant for ICI.

Having thus settled the issue of substitution the firm of David Garrick & Co. under cover of the letter dated 25th September 1996 forwarded to the Registrar of Trademark, the Deed of Assignment dated 2 3rd March 1994, Trade Mark Form 16 – Joint Request, statement of cases, authorization of agent and prescribed filing free of N2000 wherewith it ended the letter thus:
“We would be grateful if you could take necessary steps to place the name of the Assignee on the register of trademarks as a subsequent proprietor of the above mark(s).”

The Assignee in the Deed of Assignment being the 1st Appellant herein. The certificate of registration of the afore-mentioned assignment was however not issued by the Registrar of Trade marks until 21st January 2000 after the suit at the lower Court had been instituted.

The 1st Appellant appointed the Respondent the exclusive importer, manufacturer, and distributor in Nigeria of the products set out in schedule during ‘the currency of the agreement. It was agreed by the parties that the agreement of 1st May 1992 in which the Respondent was appointed the ICI’s distributor in Nigeria be terminated and it was so terminated. The agreement, was for initial period of 18 months renewable for a further period of two years upon the expiration of the initial period.

Article 5 of the 1st July 1996 agreement also stipulates that the Respondent shall buy its total requirement of monosulfiram (ingredients used in making the soap tetmosol) from the 1st Appellant or from specified company acting on the 1st Appellant’s behalf at prices applicable from time to time.

Before and after this agreement, the Respondent went about its business of producing and marketing of tetmosol soap in Nigeria. However, so many correspondences took place between it and the 1st Appellant herein, where conducts of each other were subjected to several questions.

The Respondent accused the 1st Appellant of colluding with some of its (Respondents) staff to subvert its business activities while the 1st Appellant accused the Respondent of not manufacturing tetmosol soap according to specifications. There were several correspondences and meetings to resolve these differences which yielded no dividends.

Flowing from the disagreement, the 1st Appellant decided not to renew or extend the 1996 agreement after its expiration on the 31st of December 1999 and this decision was communicated to the Respondent via letters dated 4th and 7th July, 1995. As a result a meeting was held by the representatives of the Respondent and the 1st Appellant where the 1st Appellant stressed its decision not to renew the 1st July 1996 agreement.

By a letter dated 29th July 1999, the 1st Appellant informed the National Agency for Food and Drugs Administration and Control (NAFDAC) that the agreement between it and the Respondent would expire on the 31st December 1999 and that after the date the Respondent will no longer be able to manufacture TETMOSOL soap under the 1996 agreement. In consequence of this letter NAFDAC wrote to the Respondent, attaching a copy of the 1st Appellant’s letter and invited comment from the Respondent. The Respondent through some correspondences and other documents made effort to dissuade the 1st Appellant from implementing its decision not to renew the 1996 agreement. The 1st Appellant by its Responses dated 11th May and 7th June 1999, refused to be dissuaded. Despite all the happenings, the Respondent in the letter of 28th May 1999 expressed its desire and undertook to continue to buy from the 1st Appellant its total requirement of monosulfiram, and this it continued to place orders or gave indication to do so until 5th of October 1999, when the Respondent instituted the action which has given rise to this appeal.

After hearing both sides, the learned trial Judge, Sanyanolu, J. delivered his judgment and made conclusions therein, but before setting out the verdict he delivered a ruling on the application for amendment of the 3rd amended statement of defence and the 2nd Amended Statement of claim, wherewith he granted amendment to paragraphs 6, 11,16,18,34,43 (a) of the 3rd amended statement of Defence and refused the amendment sought to paragraphs 7, 36 (3), 20 of the said Amendment as same was objected to by the Respondent.

The learned Judge also granted amendment to paragraphs 14, 22 (i), (ii) and (iii) of the Respondents Amended Statement of Claim as prayed despite objection by Mr. Ogunkeji, learned counsel for the Appellant.
In the Appellants’ joint brief of argument which was settled by Obatosin Ogunkeye Esq. of counsel for the Appellants, seven issues are distilled from the seventeen grounds of appeal which are embedded on the notice of appeal of 13th January 2003.

These issues read as follows:-
“(i) Whether in an action for the removal from the register or rectification of a registered trade mark it is unnecessary for the Plaintiff or the court to specify the registration number of the trade Mark sought or order to be removed or rectified.

(ii) Whether the trial court ought to have ordered that the trade mark TETMOSOL be removed from the register of trade marks.

(iii) Whether the trial court ought to have ordered that the entry of the trade mark TETMOSOL in the register of trade marks be varied in favour of the Plaintiff.

(iv) Whether there was any admissible and reliable evidence before the court upon which the conclusion was reached by the lower court that the 1st Defendant made a fraudulent misrepresentation to the Plaintiff prior to the execution of the agreement dated 1st July 1996?

(v) Whether the agreement dated 1st July, 1996 ought to have been invalidated or rescinded as was done by the trial court?

(v) Whether the plaintiff ought not to have been found liable for infringement of trade mark and breach of contract?

(vi) Whether the trial judge demonstrated bias in favour of the Plaintiff in his adjudication of this case.”

Professor Olanrewaju Fagbohun Esq. of counsel for the Respondent distilled five issues for determination of this appeal as follows: –

“(i) WHETHER the learned trial judge interpreted rightly the provisions of the Trade Marks Acts, cap 436, Laws of the Federation of Nigeria 1990 especially section 2, 3(3)(b), 22, 26-29, 30(1)(2), 38,49 and 50 by ordering the rectification or varying the entry of the Trade Mark TETMOSOL in the Registry of Trade marks in favour of the Respondent.

(ii) WHETHER the learned trial judge having based his judgment on the evidence and the credibility of witnesses was right in his finding of facts of fraud and fraudulent misrepresentation perpetrated by the Appellants on Respondent before or prior to the execution of Exhibit D.

(iii) WHETHER based upon the evidence adduced before him the learned trial judge was right to have dismissed Appellants’ counter-claim.

(iv) WHETHER there was cogent and reasonable evidence of bias demonstrated in favour of the Respondent at the trial judge when he granted amendment of the Respondent’s pleading at the stage of the proceedings and in so doing exercised his discretion judicially and judiciously.

(v) WHETHER having regard to the pleadings and evidence led, the learned trial judge properly evaluated and the evidence before entering judgment in favour of the Respondent with the weight of evidence based on balance of probabilities.”

When this appeal came up for hearing on the 1st of November 2006, the attention of Ogunkeye Esq. of counsel for the appellant was drawn to the fact that the seven issue distilled by him were not related or tied to the grounds of appeal. It was at this juncture, learned counsel verbally withdrew issue 1 which was accordingly struck out. Learned counsel then related the remaining issues to the grounds of appeal as follows:- Issue 2 to grounds 9, 10, and 13, issue 3 to grounds 11, 12 and 17. Others are issue 4 to grounds 4, 5 and 6, issue 5 to grounds 7 and 8, issue 6 to grounds 15 and 16 and issue 7 to grounds 3 and 14.

The Respondent related the 5 issues distilled to grounds of appeal as follows:-
Issue 1 to grounds 9, 10, 11, 12 and 4 issue 2 to grounds 5, 6, 7, 8, 14 and 16, issue 3 to ground 15, issue 4 to ground 3 and 4 while issue 5 to ground 17.

On a careful perusal of the issues raised by both parties, it is clear that all the issues distilled by the respondent herein a re answers tot he issues raised, by the Appellant for the determination of this appeal. I have read through the issues distilled by the appellant and I am of the firm view that the only issue calling for the determination of this appeal is whether there was any admissible and reliable evidence before the lower court upon which the conclusion was reached that the 1st Defendant/Appellant made a fraudulent representation to the Plaintiff/Respondent prior to the execution of the agreement dated 1st May 1996. If there was no such misrepresentation, was the lower court right when it removed the Trade Mark Tetmosol from the Trade Mark Register and rectified same in favour of the respondents. This issue raised herein covers the appellants 2nd, 3rd and 4th issues.

Professor Fagbohun, learned counsel for the respondent submitted that the trial Judge rightly relied on the testimonies of pw2 and pw 6 in coming to the conclusion that prior to the execution of the agreement dated 1st July 1999, the l5t Appellant made fraudulent misrepresentation to the plaintiff that it was the registered proprietor of the trade mark ‘Tetmosol’ and this misrepresentation induced the respondent to enter into the agreement dated 1st July, 1996. In a further argument, professor Fagbohun submitted that the evidence of pw2 and pw6 was not challenged by the Appellants and so the trial judge had no option but to rely on same.

From the evidence before me, the 1st Appellant is a juristic person who can only speak through its officers in a documentary form attested to by its directors. Where such statement is verbal, the names of the officers that volunteered the statement ought to be given. I therefore agree with the submission of Mr. Ogunkeye, learned counsel for the appellant that the 1st appellant being an artificial person, couldn’t have spoken in such a way as to induce by fraudulent representation to the Respondent to enter into the agreement of 1st July 1996.

It is even difficult to believe that a reputable company as the respondent would be induced to enter into an agreement by a stranger that it had never done any business with on an important issue such as’ proprietorship of a Trade mark. I do not think that the Respondent entered into the agreement of 1st July 1996 as a result of any representation by the 1st Appellant.

Even through the evidence of pw2 and pw6 on this issue of fraudulent representation was not challenged by the appellant, it will nonetheless not stand. It is not every unchallenged evidence that will admit the court’s reliance. Where evidence is unreliable and not capable of being believed, even though it is not challenged by the opposing party, the court will not rely on such evidence. See Chief Erivo v. Obi (1993) 9 NWLR (pt.315) 60 where this court said:-

“A reasonable tribunal or court is not necessarily bound to accept any unchallenged evidence as ipso facto establishing a fact if the quality of such evidence is not commendable.”

In article 25 of the Agreement of 1st July 1996, exhibit D in the record and which is titled “ENTIRE AGREEMENT/AMENDMENT”.

Each of the party acknowledged that it has not been induced to enter into the Agreement by reason of any representation made by or on behalf of the other party. This is what Article 25 of Exhibit D says:-

“This Agreement and its schedules set forth the entire agreement and understanding between the parties regarding the subject matter hereof and supercedes all prior discussions and agreements written or oral and each of the parties acknowledges that it has not been induced to enter into this Agreement by reason of any representation made by or on behalf of the other party. No amendment shall be effective unless made in writing by an authorized signatory of each party.” (underlining is mine).

Having agreed that it was not induced to enter into Exhibit D, the respondent can not turn around and claim that it was induced to enter into the agreement, and so I hold.

By Exhibit AR which is the certified True Copy of the Deed of Assignment dated 23rd April 1994, the 1st Appellant became entitled to the Trade Mark Tetmosol by assignment as provided for under section 30 (1) of the Trade M arks Act ( Cap 4 36) Laws of the Federation of Nigeria 1990.

The letters exhibits C and C1 which conveyed the information on the assignment of the Trade Mark ‘Tetmosol’ to the 1st appellant to the Respondent did convey the actual change of ownership of the Trade Mark ‘Tetmosol’ that had taken place.

I find no evidence of fraudulent representation by the 1st Appellant before the Agreement of 1st July 1999 was executed, and the lower court was therefore in error when it held that the 1st Appellant had made fraudulent representation that induced the Respondent to execute Exhibit D.

Paragraph 11 of the Amended Reply to the 3rd Amended Statement of Defence of all the Defendants and Defence to the counter claim of the 1st Defendant contains the following averment, to wit:-

“In answer to paragraph 38 of the 3rd amended statement of defence the plaintiff avers that prior to the 1996 Agreement and subsequently thereafter the 1st Defendant was fraudulent in not informing it that the 1st Defendant was not the registered proprietor of the Trade Mark ‘Tetmosol’ in Nigeria. Further the plaintiff avers that whilst it enjoyed mutual good faith in its relationship with ICI and 1st Defendant has since its substitution acted fraudulently and in utmost bad faith under the 1992 and 1996 Agreements.”

Clearly this is an allegation of fraud by non-disclosure which was not raised in the respondent’s writ of summons or statement of claim. Also not contained in the statement of claim is the allegation that the 1st appellant approached the respondent and infirmed it that it was the registered proprietor of the Trade Mark “tetmosol”. These allegations were raised in an amended reply for the first time. The law is settled that it is not permissible to raise a new cause of action not set out in the writ of summons in a reply to the defence. In Professor N. O. Adeniji & ors v Professor B.L.A Fetuga (1990), 5 NWLR (pt.150) 375, this court, per Akanbi JCA held:- “A reply is the plaintiffs answer or response to any issue raised by the defendant in his defence and which the plaintiff seeks to challenge, deny or admit or object to either on ground of law or a misstatement of the cause of action and it is not permissible in a reply to the defence to raise a new cause of action not set out in the writ of summons, for a plaintiff must not in his reply make any allegation of fact or raise any new ground of claim different from what is contained in his statement of claim.”

See also Oshodi v. Eyifunmi (2000) 12 NWLR (pt.684) 298. Since the respondent is not permitted to raise new issues in the reply brief, those issues of fraud by non disclosure or fraudulent representation which were raised in the Amended Reply to 3rd Amended Statement of Defence go to no issue and accordingly the evidence of pw2 and pw6 which were sought to be legitimized by the amendment are hereby discontenanced by me.

From the reasons I have set out herein, I am of the firm view that there was not admissible and reliable evidence before the lower court upon which that court reached a conclusion that the 1st Appellant made a fraudulent representation to the respondent prior to the execution of the agreement of 1st May 1996, that it was the registered proprietor of the Trade Mark ‘Tetmosol’ .

On whether the agreement dated 1st July ought to have been in validated, set aside or rescinded as was done by the lower court, I am of the view that it was not right for the lower court to invalidate or set aside the said agreement. There was no reason for such an exercise. I have held else where in this judgment that there is no evidence that the 1st Appellant made any fraudulent representation to the respondent. Professor Fagbohun, Esq. of counsel to the Respondent in his argument, submitted that the appellants had consistently engaged in dishonest, fraudulent and unfair practice in their dealings with the respondent before and after the 1st agreement of 1st July 1996 as highlighted in exhibits J, J1, J2 and A.G. Any fraudulent and unfair dealings with the Respondent by the 1st Appellant before the 1st July 1996 agreement was clearly condoned by the respondent when it entered into the agreement of 1st July 1996. Any subsequent acts of unfairness could only be determined according to the provisions of the agreement. There is provision for parties to withdraw from the agreement after due notice has been given. I am of the firm view therefore that the lower court acted in error when it ordered for the rescission of the agreement of 1st July 1996.

On the removal of the Trade Mark Tetmosol from the register of Trade Marks in Nigeria pursuant to S.31 (2)(b) of the Trade Marks Act on the ground of non bonafide use for a period of over five years, preceding the commencement of the suit, Professor Fagbohun submitted that the trial court was right in doing so. Section 31(2)(b) of the Trade Marks Act provides 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 a registered trade mark may be taken off the register. Section 31(4) of the Trade Marks Act provides that an applicant shall not be entitled to rely for the purposes of subsection 2(b) of this section, on any non-use of the trade mark that is shown to have been due to special circumstances in the trade and not any intention not to use or abandon the trade mark in relation to the goods to which the application relates.

The main ground for an application for the removal of a trade mark as provided for under section 31 (2)(b) of the Trade Marks Act is that the applicant must show that at the time the application was made, the respondent had no intention that the trade mark should be used in relation to those goods for which the registration was made. Although subsection 2(b) of section 31 of the Trade Marks Act provides that an application for removal of Trade Mark can be made and granted where the trade mark has not been used by the proprietor for a period of over five years, subsection 4 of the same section clearly makes the provision under S.31 (2)(b) subordinate to the lack of intention on the part of the applicant to use the trade mark in relation to the goods for which the trade mark is registered. The respondent did not lead evidence to establish that there was no intention on the part of the registered proprietor of the trade mark Tetmosol to use same for the production of tetmosol. There was also no evidence that the trade mark Tetmosol was wholly abandoned. The evidence before the lower court is that the trade mark was assigned to the 1st Appellant by ICI. This I think is just a special circumstances in the trade and not and intention to abandon the Trade Mark.

It is my view that the lower court was wrong when it removed the Trade Mark Tetmosol from the Register of Trade Marks and rectified same in favour of the respondent.

As for the 1st appellant’s counterclaim at the lower court, sections 3 and 5 of the Trade Marks Acts protect only proprietors of registered trade marks. Mere submission of application for registration of trade marks is not enough, to secure the protection that is provided by the ‘aforementioned sections of the Trade Marks. In Dyktrade Limited v Omnia Nigeria Limited (2000) FWLR (pt 10 – 13) 1785, at page 1791, paragraph 13, the Supreme Court, per Belgore JSC as he then was said:-

“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 trade mark and also right to sue for passing off the goods of the proprietor…In the instant case on appeal, the only matter before courts below is the allegation that the appellant applied for registration of the trade mark. The contention that the application was made does not mean that it is registered.”

It is therefore my view that the 1st Appellant was not entitled to institute any proceeding to prevent or to recover damages for theinfringement of the Trade Mark “Tetmosol” prior to 21st of January 2000, since the Deed of Assignment from which it acquired title to the Trade Mark ‘Tetmosol was not registered.”

On the 2nd leg of the counter claim, Exhibit Y is the minutes of the meeting held between the respondents and the 1st Appellant on the 16th of October 1997 at the 1st Appellant’s Office, in Macclesfield, England. This document was tendered and admitted in evidence on the 11/12/2001, without any objection. It is therefore a document to be relied upon. From the contents of exhibit Y the parties in this appeal had agreed that the respondent should carry out study and test under Project 50 by importation of Monosulfiram from elsewhere other than the 1st appellant. I therefore agree that it was in pursuance of this project that the respondent purchased monosulfiram B. P from India. I am therefore satisfied that there is no breach of the provisions of the 1996 agreement by the respondent.

The final issue for consideration is whether the trial judge demonstrated bias in favour of the plaintiff in his adjudication of this suit. This issue is distilled from grounds 3 and 14 of the grounds of appeal. Ground 14 complains about ‘error in law’. Particulars of the said error are not given. This clearly offends Order 3 rule 2(2) of the Court of Appeal Rules 2002. This order provides as follows:-

“If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated. Since the particulars of the error alleged in ground 14 are not given, the ground is incompetent and same is accordingly struck out.

Ground 3 also complains about error of law on the part of the trial Judge by demonstrating obvious bias in favour of the respondent in the adjudication of this suit. The particulars given in respect of this ground are as follows:-

“(a) Similar issues under similar circumstances were decided favorably where the Plaintiff/Respondent was concerned and unfavorably where the Defendant/Appellants were concerned.

(c) The Learned trial judge exhibited in uncritical acceptance of all submission and all prayers made by the plaintiff/respondent even when such are obviously inconsistent with the law or common sense.”

One issue is distilled from this ground and the incompetent ground 14 which was struck out.
The difficulty now is how to determine which argument in the brief is for the valid ground of appeal and which one is for the incompetent ground of appeal. This is definitely not my own business. The issue distilled from grounds 3 and 14 therefore is incompetent and it is struck out. This leaves bare ground 3 which I also strike out. From the particulars supplied under issue 7; it will appear that the acts which learned counsel is complaining about, occurred several times during the trial. There is no evidence that the appellant raised objection to the trial court continuing with the case. He can therefore not be heard to complain on appeal.

In Olue & Ors v Enenwali & ors (1976) 2 SC 23 where a judge who was a counsel to one of the parties while in private practice heard and determined the suit without any complain from the parties. On appeal, the appellant raised the issue of bias. The Supreme Court held that as there was no objection to the trial court continuing with the case, the parties can not on appeal-complain.

In Majorah v Fassasi (1985) 5 NWLR (pt 40) 243, it was held that a court should be wary of coming to the conclusion that there is bias or likelihood of bias on a mere allegation with out a prima facie evidence.

See Odudu v Atoyebi (1987) 2 NWLR (pt 68) 660 Odunsi v Odunsi (1979) 12 NSCC 57 at 59.

In this appeal neither technical nor real bias on the part of the court has been established by the appellant.

On the whole this appeal is allowed. The orders and declarations contained at pages 1254 – 1255 listed from numbers 1 – VII in the record of this appeal are hereby set aside. Cost of N10,000 is awarded to the appellant.

ISA AYO SALAMI, J.C.A.: I read before now the judgment just delivered by my learned brother, Galinje, J.C.A. I agree with the reasoning contained therein and the conclusion arrived thereat.

I also allow the appeal and set aside the decision of the learned trial judge. I abide by all the consequential orders including the order as to costs contained in the lead judgment of my learned brother, Galinje, JCA.

ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother GALINJE, JCA delivered in this appeal. I entirely agree with the reasoning and conclusions reached therein. I adopt same as mine.

The issue of bias complained of in Ground 3 and same being treated under issue 7, having been raised for the first time in this court without obtaining leave is incompetent and ought to be struck out. The position of the law is that an Appellant will not be allowed to raise on appeal a point or issue that was not raised or canvassed or argued at the trial or considered by the trial court without the leave of the Appeal Court. The only exception is where issue of jurisdiction is involved, then it can be raised at appeal level without any leave. The decision of the Supreme Court in Elugbe vs. Omokhafe (2004) 18 NWLR (Pt.905) 319 at 334 paras C – D is relevant on this issue. The apex court had this to say:- “It is generally the law that fresh matters cannot be raised on appeal without leave of the court. But the issue of jurisdiction has always been considered exceptional. Therefore the Court of Appeal was in error not to have allowed the parties to fully address it on the question of jurisdiction raised before it.” See also Oke vs. Oke (2006) 17 NWLR (Pt.1008) page 224 at 237 – 238 paras H- C and Ajuwon vs. Adoti (1990) 2 NWLR (Pt.132) 271 at 296 paras B – F.

With this few words of mine I too find ground 3 and issue 7 distilled from it incompetent and same are struck out.

It is for the above reasons and the fuller reasons given in the lead judgment of my learned brother GALINJE, JCA that I too allow the appeal. I abide by the consequential orders made in the lead judgment including cost.

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