Societe Bic S.a & Ors Vs. Charzin Industries Ltd (2014)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

Before the High Court of Justice of Lagos State, Lagos Judicial Division, the plaintiff, now respondent, claimed against the defendants, now appellants, as follows:

“(a) The sum of N10,000,000.00 (Ten million naira) as damages for injury suffered by reason of the libel on the plaintiff’s “CHARZIN” Ball Point Pens contained in the advertisements the defendants published and caused to be published in the issues of the “Vanguard Newspaper, of August 18, 1995 on page 10 and the Daily Times Newspaper of November 13, 1995 in page 4.

(b) A perpetual injunction restraining the defendants and each of them whether by themselves or by their servants or agents from further printing, issuing, publishing or circulating or causing to be printed, issued, published or any other similar libel affecting the plaintiff.”

The plaintiff filed its Statement of Claim along with the writ of summons. Upon service on them of the Writ and Statement of Claim, the defendants (now appellants) filed a motion on notice on 23rd February, 1998 asking for the following reliefs:

“(1) An order striking out this Suit in that this Honourable Court has no jurisdiction to entertain the same being an action within the exclusive jurisdiction of the Federal High Court.

(2) An order striking out this Suit as constituting an abuse of Court process in view of the fact that the issues necessary for the determination of the same are subjudice in the case of Suit No. FHC/L/CS/1182/95: Societe Bic SA & Compagnie De Moulagues v. Charzin Industries Ltd & Charles Ezeagwu…”

The reliefs were predicated on the grounds that:

“1 By the provisions of section 230 (1) subsection (f) of the Constitution (Suspension and Modification) Decree No. 107 of 1993, jurisdiction is conferred on the Federal High Court to the exclusion of all other Courts, with respect to civil and criminal cases or matters relating to:-

‘Any Federal enactment relating to Copyright, Patents, Designs, Trade Marks and Passing-off, Industrial Designs and Merchandise Marks, Business Names and Commercial Industrial Monopolies, Combines and Torts, Standards of goods and Commodities and Industrial Standards.’

2. The claim in this Suit arising from a publication made on protection of the defendants’ Registered Trade Marks, Copyrights and Design falls within the exclusive jurisdiction of the Federal High Court as provided for under the Constitution (Suspension and Modification) Decree No. 107 of 1993.
3. There is pending before the Federal High Court Lagos presided over by His Lordship, Mr. Justice G. A. A. T. Jinnadu, Suit No. FHC/L/CS/1182/95 Societe Bic S. A. & Compagnie De Moulagues v. Charzin Industries Ltd & Charles Ezeagwu, over the same subject matter as the present Suit wherein parties and the issues raised are substantially the same as this present Suit.
4. The issues necessary for the determination of this Suit are subjudice in the said Suit No. FHC/L/CS/1182/95: Societe Bic SA & Compagnie De Moulages v. Charzin Industries Ltd & Charles Ezeagwu.
5. The plaintiff in this Suit represented by the same solicitors herein has taken several steps in Suit No. FHC/L/C/S/1182/95: Societe Bic S. A. & Compaqnie De Moulagues Industries Ltd & Charles Ezeagwu before Honourable Mr. Justice G.A.A.T. Jinnadu and are entitled to raise a counter-claim in the suit where they have already been sued.”

The motion was supported by a 12-paragraph affidavit to which were annexed Exhibits A-F1, further and better affidavit of six paragraphs of 20th March 1998 to which were annexed Exhibits AA-CC1 and 2nd further and better affidavit of five paragraphs deposed to on 21st April 1998 with one Exhibit – IJU1. Though there is a further counter-affidavit of six paragraphs, the records do not contain a counter-affidavit.

In its ruling delivered on 6/11/98, the trial Court stated, inter alia, that:

“The applicant has a 12 paragraphs (sic) affidavit with Exhibits attached marked ‘A-F1’ and a further and better affidavit of 6 paragraphs with Exhibits marked ‘AA-CC1’ and 2nd further and better affidavit of 5 paragraphs with another Exhibit marked ‘IJU1’. The trial Court concluded its ruling thus:

‘Since the issue involved is the tort of libel and injunction I hold that this Court has the jurisdiction to adjudicate in respect of this suit. The objection by the learned Counsel to the Defendant is therefore misconceived and this application is accordingly struck out.”‘